Economic Myths #7 – Government means Harmony

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One of the aspects of capitalism and the free market that the typical lay person finds difficult to comprehend is the fact that the complex structure of work, production, distribution, and trade could possibly take place without some kind of centralised, directing authority in order to co-ordinate everybody’s efforts. Wouldn’t there just be chaos and mal-coordination with everyone trying to make their own, independent plans with no government tiller to steer the giant ship?

This fallacy stems from the belief – accentuated by holistic concepts such aggregate statistics and, indeed, national identities – that “the economy” is some kind of enormous machine that has “input” and requires one operator to “process” the “inputs” into “outputs”. In fact, rather than being one giant, amorphous blob “the economy” is made up of millions and millions of independent unilateral acts of production and two-way trades, many of which will never have anything to do with each other. Indeed, I may sell an apple to my neighbour for 10p in London; another person may sell an orange for 20p to his neighbour in Manchester. Neither of the two pairs of people has ever met, nor need any of them have anything to do with the exchange of the other pair; and yet both exchanges would be regarded as part of “the British economy” in mainstream discourse. Rather than being a top-down operated machine, the economy is a bottom up network of independent transactions – motivated by the ends desired by each and every one of us rather than a bureaucrat – joined only together through the communication of the price system. All of the trades together, stimulated by varying and changing desires and ends that people seek, will have a constant and unceasing influence on the prices that regulate the supply of goods relative to their demand. Ironically, it is precisely because of such complexity that the attempts of any central authority to control and direct it are nothing short of futile – as Ludwig von Mises proved as long ago as the birth of the world’s greatest collectivist experiment, the Soviet Union, in Economic Calculation in the Socialist Commonwealth.

An oft-heard complaint, particularly from the left, is that “globalisation” and expanding markets has led to a decimation of the local culture and community. All this means, however, is that the market for goods has simply expanded so that one can source one’s needs from pretty much anywhere on the globe. It is still the case that the driving force of demand is not global or holistic – it resides very locally in every individual person’s tastes and desires. Such complaints therefore fail to recognise the irony in calling for a very distant and hardly local entity – the government – to halt globalisation and expanding markets by replacing what individual, local people desire with its own ends.

This myth, of course, goes further than economics and has more than seeped into philosophy as well, stemming from a basic misunderstanding about what is required for the human race to live in peace and harmony. It does not mean that we all need to be pursuing the same ends, following the same plan or singing from the same hymn sheet and we do not need some centralising authority to prevent “discordance” between the actions of one person and another. Rather, what is required is that we can each follow our own plans while not conflicting with the plans of others. This is precisely what private property and the free exchange accomplish. Recognising that all conflicts have their origin in the contest over physical goods, an exclusive right is granted to the first user-producer (or to the recipient of the good in a voluntary exchange) so that he may fulfil his ends without molestation from other people; and other people can use the goods for which they are the first producer-user without interference from him. Any person arguing in favour of “one direction” and “harmony” at the behest of centralised control really means that everyone else’s plans should be overridden by his own – and should be forced to accept them. Indeed every forced, government transaction requires there to be at least one loser, one person who does not want his funds directed to the ends desired by government. Rather than producing harmony what results is merely bitterness and antagonism. Furthermore, aside from the economic chaos that such a system brings, rather than inspiring such qualities as productivity, self-reliance, hard work, prudence, patience and responsibility, the resulting social disorder instils, in their stead, laziness, apathy, conflict, corruption, impatience and cynicism – hardly the human qualities that one would wish to exemplify as the hallmarks of a “peaceful” and “harmonious” society.

True harmony can only be brought about by allowing each and every individual to pursue his own ends with the scarce resources over which he has lawful ownership, while allowing everyone else to do the same – permitting the human race to flourish peacefully and devoid of conflict. Not only does government fail to aid this process, it is the active cause of its destruction – and the sooner we recognise this the closer we will be to building a lasting peace and prosperity.

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Anarchism and Law

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In our recent series concerning libertarian law and legal systems, we explained briefly how legislation is ultimately incompatible with a free society and that the finding of laws would be a decentralised, heterogeneous process. This essay will attempt to elaborate on how this procedure might work in a purely anarchical society – one with no compulsory, centralised authority of ultimate decision-making power – and how law will, in spite of (or perhaps because of) this fact cohere into a harmonious system.

As we have stressed countless times before, law emerges only because individual humans perceive conflicts that arise from interpersonal scarcity; we each wish to devote the means available for our disposal to our different, individual ends. If A wants to eat a loaf of bread then B cannot do so at the same time. Laws therefore arise to determine who has the right to own and, thus, to eat the bread. Where there is no conflict between two individuals then there is no need for law as it would simply serve no purpose.

The genesis of law, therefore, is a conflict over a scarce good between two individuals. For example, A alleges that B has aggressed against his (A’s) property; B might retort that the property is rightfully his and that A is the true aggressor for withholding it from him. Laws arise to determine who has the just title to the disputed property. But where would these laws come from? It is unlikely that A and B can unilaterally come to their own determinations of precisely which outcome is just. Aside from the fact that they are both biased parties and will seek to mould the law according to the outcome that they each desire, laws are intended to be publically acknowledgeable standards of conduct. In other words, the outcome of the case matters not only for A and B; everyone else in the world also needs to know who is the rightful owner of the disputed property so that they too may avoid or otherwise resolve any potential conflicts that they may have over that property. In short, everyone needs to know who owns what and who may lawfully do what with which goods. A and B are merely individuals and otherwise have no public reputation for dispensing and pronouncing the ownership structure that is just. A and B may unilaterally declare what they believe be to be the just position (and they may be correct) but why should anyone listen to them? Why would their own pronouncements afford them any moral protection at all from future aggressors?

Rather, what is likely is that each party will seek a just outcome through established and trusted professional bodies that have earned a reputation for dispensing justice and resolving conflicts. These bodies are privately owned and funded and must satisfy the “consumers” of justice that they will resolve cases fairly and impartially, otherwise they will lose custom to those providers that will. They are not compulsorily funded monopolies such as state-provided law courts and they must persuade their customers that their dispensation of justice is adequate.

Whether the processes followed by such private, justice dispensing bodies (hereafter “private courts”) will be adversarial, inquisitive or more closely related to some kind of arbitrational procedure cannot be said for certain; that is for the marketplace to determine, just as the marketplace will determine the structure and procedures of food and beverage manufacturers. There is, however, an arguable case for stating that the process will be adversarial much like law courts in common law systems, as we shall see shortly.

What will happen then once there is an allegation of aggression by one party against another? Let us say that A believes that B has committed an act of aggression against him. B may either deny this, he may dispute the facts, or he may believe that A is the true aggressor – whichever way they cannot resolve their dispute amicably and with agreement. What will A do in order to appeal for justice? In the first place he will seek out a private law court that he believes, from past decision-making, will most likely award him the outcome that he desires (all else being equal). A will bring an action against B in this private law court – let us call it L1 – and will furnish his case to that body. B, however, while likely being notified of the suit against him, has no obligation to attend the trial by L1. L1 is a private body like any other and has neither power of compulsion nor power of subpoena over anyone. B therefore has three options. First, he can either ignore the lawsuit and have nothing to do with it; this might seem risky but he has to judge the value of defending himself from A’s allegations against that of other activities to which he could devote his time and money. Indeed he might believe that A’s case is either frivolous or an outcome in his (B’s) favour so certain that there is no point in wasting any expense. Secondly, he might choose to defend himself against the suit in court L1. Thirdly he may disregard the suit in court L1 and proceed to bring a defensive action in another body – court L2. After all, if the potential outcome of the lawsuit poses a threat to B then B too will be eager to find a reputable law dispensing body that is mostly likely to find in his favour and not in A’s. If he believes that this likelihood is greater in court L2 than in court L1 then he will opt for court L2 and leave A to prosecute his case in court L1. It is because of these options, arising out of the fact that the private court system will never be able to compel any person, whether plaintiff, defendant or third party, to appear as a witness or to adduce evidence, and that they will have to rule solely on the evidence that is presented to it voluntarily, that the whole private court procedure is likely to be adversarial in nature. The court has no powers of inquisition or detection and is wholly reliant upon that which is provided to them by the parties. The parties may, of course, prior to the suit have hired their own private detective agencies to investigate and produce evidence that aids their cause and this may involve the questioning of and adducing of evidence by witnesses. The courts, eager to preserve their standards of justice, will develop rules as to that which constitutes acceptable evidence and private detective agencies will need to follow these should they wish to remain in business1. Furthermore, because of the need to be seen to be making an impartial decision, it is not likely that the court itself can get involved in fact finding missions and the direct handling of critical evidence. Rather, it is ultimately up to the parties to bring their cases to the court and to present them and for the court to rule impartially as a totally uninvolved third party.

How, then, will the courts reach a decision? If a case is prosecuted in court L1 then the court first of all needs to come to a settled understanding of what the facts of a certain case are. Facts are often disputed in cases and precisely what happened may be a painstaking and drawn out process. Once the facts are agreed, however, the more interesting question is how will the court apply the law to the case? And from where does this law come?

The overwhelming concern for L1 is that it rules in such a way as to treat like cases as alike – in other words, thefts are always dealt with in the same way; murders in their own way; assaults in theirs; and so on. In other words the same facts always lead to the same legal result in order to create a high degree of certainty of outcome. Law is, of course, meant to be a guide to avoiding and otherwise resolving conflicts and those bodies that rule in such a way as to confuse or distort the certainty necessary in order to accomplish this will simply lose custom. The task for the court therefore is try to compare and contrast the facts in the current case with those in past decisions – either sustaining the points of law in past cases that are in harmony with the facts of the current case on the one hand, or distinguishing those cases where the facts are different and the legal points do not apply to the current case on the other.

Where the case simply concerns a dispute of facts rather than the applicable law – i.e. the question to be determined is precisely which acts A and B carried out and the lawfulness of those same acts is not disputed – the court has to make a judgment along evidential lines to the satisfaction of the required standard of proof. Where the facts are agreed, however, and it is the question of law that is unresolved – i.e. whether A’s or B’s acts were unlawful – then the task for the court is much more difficult. Resolving these so-called “hard cases” at the individual court level is not so much our concern here, although we may venture to say that where there is no clear precedent the court is likely to reason an outcome that best adheres to the principles of past cases which will, in a libertarian society, be underpinned by libertarian society. We can also venture to suggest that a court is likely to be as cautious and as precise as possible when “discovering” law to apply to what appears to be a novel situation in order to avoid the appearance of outlandishness and to be sure to not inadvertently confuse or bring into question existing, well established principle, a limitation that has often escaped our statist legal systems. Rather, the more important aspect for us is how such “new” law will come to either be embraced or rejected by the legal system as a whole. This aspect turns squarely on how the decision is respected by the parties to the case and by subsequent persons and bodies that must deal with that case.

In the first place, if the trial is taking place in only a single private court – court L1 – that court’s judgment will be the only one in existence. We must add at this point that neither the court nor anyone else has the absolute right to enforce that judgment. Rather, remedial actions intended to resolve the conflict in harmony with the judgment now carry a degree of demonstrable moral weight. It is assessing the strength of this moral weight that is the first indicator of whether the judgment forms good law. Let us examine how this might unfold.

If the court decides in favour of the plaintiff (A) and against the defendant (B), B has a number of options. He can recognise the validity of the judgment and voluntarily furnish an appropriate remedy to the plaintiff. Such an act would be the first indicator of the soundness of the judgment. If, on the other hand, B rejects the decision or is otherwise uncooperative the task of enforcing a remedy may fall to a private recovery agency hired by A. Such an agency would necessarily be using force in order to extract a remedy (say, compensation) from B to make good the loss to A. This agency will want to make absolutely sure that the judgment in court L1 upon which it is basing its action is valid law in order to avoid the possibility of B later bringing a suit against the agency. In other words, the agency needs the weight of the judgment to prove that its remedial actions are a response to the genuine aggression of B and are not themselves new acts of aggression against an innocent party. If the recovery agency accepts the judgment and proceeds to enforce a remedy out of B this further lends weight to the judgment’s validity2. Before or even after that happens, however, B could bring a suit in an alternative court (L2) if he disputes the judgment of L1 (or may already have done so if he anticipated that L1’s judgment would not be favourable, as we suggested above). L2 will now examine the evidence and make a second judgment. If L2 rules the same way as L1 and finds in favour of A then this, again, adds a tremendous degree of weight of L1’s original decision and it is unlikely that any private recovery agency would hesitate to act as a result of not one but two judgments from established, reputable bodies against B. On the other hand court L2 might find in favour of B and against A. In this instance we now have the quandary of two alternative decisions emanating from different courts. What on earth will be the outcome of such a situation? It is likely that the two courts, faced now with the reality of uncertainty in their jurisprudence as to the outcome of a particular type of case, will be eager to resolve this difference of opinion in order to ensure that they will be able to cater for clients facing similar circumstances in the future and thus earn their custom – not to mention to clear up once and for all the problem for the specific plaintiffs before them. Court L1 might review the case presented in court L2 and decide to change its opinion in light of the new judgment, acknowledging that its original decision was incorrect and that henceforth the legal principles outlined by the trial in court L2 will form part of its jurisprudence. This is especially likely if L2 benefitted from evidence or testimony that was unavailable to court L1. On the other hand, should the difference of opinion not be resolved, L1 and L2 might themselves appeal to a third court – court L3 – in order to deliver a third and what is likely to be a final judgment. The two courts, eager to preserve their decision-making reputation, will be keen to demonstrate that each of their decisions was the correct one and will present their cases before L3 accordingly. If L3 rules in favour of A, the judgment of L1 is vindicated and L2 will mostly likely incorporate L3’s decision into its jurisprudence, overruling its own. If, on the other hand, L3 rules in favour of B, then it is L1’s decision that must be discarded. Courts that are serially victorious on appeal cases may have their reputation as justice-dispensing bodies enhanced whereas those who do not may have to work harder in the future to restore their own reputation. For the parties to the immediate case, however, one of them will now have two judgments in his/her favour and the other will only have one. While it is theoretically possible for parties to go on litigating ad infinitum, not only do we have to remember that the parties themselves will have to fork out the costs for these endless cases but that also further or alternative courts may simply refuse to hear the case, taking the reasonable view that two similar judgments by different reputable bodies makes good law and there is no need to go to the time and expense of prosecuting the same case again when there are other customers who are in need of justice dispensing services. Doubtless a private recovery agency will accept the weight of two judgments as authority to enforce a legal remedy from the losing party, should the latter not comply voluntarily. The only likely solution for the losing party is to adduce new evidence that the previous three courts were not able to benefit from and only then could the case be tried a fourth or fifth time. While it is also possible that one or more of the decisions would be completely wayward it is likely that the discipline of the marketplace will ensure that such instances are kept to a minimum.

Finally, another possibility is that court L2 might rule in favour of the same party as court L1 but on different legal grounds from that of court L1. While this will resolve the case for the immediate parties it is likely that L1 and L2 will privately bring a suit in L3 in order to resolve the outstanding question of law and remove any uncertainty from their jurisprudence. Of course, it may not be possible to settle all points absolutely in the immediate case and further cases may illuminate other circumstances or possibilities that bring past judgments into question. As we noted in our series of libertarian law and legal systems, law is determined not only by libertarian principle but by custom, convention and economic expedience. Although libertarian principle remains as a constant bedrock, these other aspects are likely to change as time unfolds and so it is entirely possible – nay, likely – that past discoveries of law will come to be replaced by new ones to reflect the wider societal change. Indeed as society changes so too does the precise nature of conflicts that arise – old situations disappear and new ones arise. Law that was applicable to the former may no longer be suitable for the latter. The law of a sparsely populated agrarian society, for example, will most likely have to deal with problems such as straying cattle and farm workers’ contracts whereas a densely populated urban society would need law to address issues such as noise, light pollution, boundaries, and also building covenants, rights of way and restrictions to a much greater degree. The precise legal rules that are determined for one society may not be appropriate for another and hence law will change over time as society changes.

Conclusion

This is basic outline of how law is likely to be discovered through prosecuting independent cases in an anarchist legal order populated only by private justice dispensing agencies. Crucially what we can see is that even though law discovery and decision making is heterogenous and takes place in different times and venues, in its entirety it coheres into a single body of jurisprudence that all courts will apply in future cases. What we see then is that a coherent system of law, in much the same such as money, turns out to be one of those institutions that exists and flourishes as a result of human purpose but not of human design. In just the same way as no one individual invented and introduced money, so too there is no one person determining and scribing the law. Just as no one individual will is needed to determine the price of a good in order to ensure its rationing and distribution to the most urgently desired ends, neither is there a single will pronouncing the just outcome of cases. And yet, just like money and market prices, law serves one of the most vital purposes of human interaction – the dispensation of justice and the resolution of conflicts – without any compulsory, monopolistic and centralised authority.

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1Such detective work may also be carried out by an insurer in cases where the aggrieved party is insured against the risk of aggression. Indeed some cases might ultimately prove to be a contest between the insurers of the parties rather than the parties themselves.

2The recovery agency is likely, of course, to outline the prerequisites that a plaintiff must possess before it will go ahead with a recovery. The judgment of a reputable and impartial third party is likely to be one of them.

 

Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation

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In part one of this five-part series we outlined some preliminary considerations concerning how a libertarian legal system might unfold and develop. We are now in a position to begin exploring the causative events of legal liability in a legal order governed by libertarian prescription.

Prior to considering any specific area of the law such as tort or contract we must explore the ways in which a libertarian legal system will recognise and enforce self-ownership and also the original appropriation of previously ownerless goods. Technically speaking, the latter topic at least could be covered as part of the law of consent. Both self-ownership and titles over goods allow their owner to not only enjoy the productive services flowing from his body and external goods, but equally and oppositely they burden him with the responsibility of ensuring that, through his actions, those goods do not physically interfere with the person and property of anybody else, otherwise he breaches the non-aggression principle – and there is likely to be at least prima facie liability of the owner if property belonging to him is found to have physically interfered with the person or property of somebody else. In the same way that it is unjust to physically interfere with someone else’s property, so too is it unjust to hold someone responsible for property that he has not voluntarily assumed to be his or to have asserted control over through his actions. For example, if the brakes of a car fail and the car rolls down hill before striking a person you are responsible only if it is your car and hence have responsibility for ensuring that its brakes are fully functional. It would be a travesty of justice if, barring any special circumstance, you were held legally liable for someone else causing an accident with their car that they were supposed to maintain. In short, people should not be burdened with the ownership of goods when they have not voluntarily assumed that burden, either by original appropriation or by contract. Nevertheless we will confine our discussion of the law of consent to bilateral arrangements such as contracts and concentrate here on unilateral incurrence of rights and obligations. Our first task, therefore, is to understand very clearly how a libertarian legal system will recognise bodily ownership on the one hand and the original appropriation of previously ownerless goods on the other. As we mentioned in part one we have justified elsewhere these concepts of self-ownership and homesteading of previously ownerless goods, and we will not attempt to further justify them here. We will only assume their equity to be true as our task here is to explain how a libertarian legal system will come to recognise and enforce them or, at the very least, we will enunciate the issues that such a system will face in so doing.

Legal Persons and Self-Ownership

The fundamental task for any legal system, then, is to recognise which entities are legal persons and which are not – legal persons being those who can enjoy rights on the one hand and can be burdened with obligations on the other. In other words who is it who has the ability to both enforce his rights and also bear the responsibility of adhering to his obligations? In libertarian theory it is those entities that demonstrate rational action that possess self-ownership. Such action is demonstrative of desires and choices that lead to action that utilises means to realise ends without being governed purely by instinct, by reflexive impulses or simply by the inertia of external force such as the wind or gravity. Any libertarian legal system is therefore required to determine which entities demonstrate rational action so that they may enjoy both the benefits and burdens of self-ownership. As we stated in part one, it will never be sufficient for an entity to simply possess choices, desires, ends and so on; rather, these have to be publically evidenced and acknowledgeable. Rocks, for example, might possess rational thoughts and feelings that our current level of scientific understanding is unable to detect but the inability of a rock to demonstrate these thoughts and feelings through objectively viewable action renders it outside the category of legal persons. Every human needs to act now and to know what his rights and obligations are now, and the mere possibility that another entity could be discovered to have rational thoughts in the future is not sufficient. The alternative would be to tip toe around every piece of matter and, effectively, to never act at all and thus condemn oneself and the rest of the human race to death. With the requirement of rational action, therefore, it is critical that there is in fact any action at all as much as it is that the action should be rational.

When interpreting this action in order to recognise self-ownership, the basic rule of thumb for the majority of human beings is likely to be “can the person appeal for an enforcement of his rights?” In other words, conflicts over scarcity and the resulting legal disputes with an appeal to morality and justice only arise precisely because the parties to the conflict are able to demonstrate rational action. When a cheetah kills an antelope the antelope’s relatives do not gather together a high council of antelope judiciary ready to subject the delinquent predator to trial. Nor does a human being demand justice from a dog if it bites him (although he may, of course, sue the dog’s owner). Questions of justice arise only between those who are able to appeal to it, such an appeal itself being a rational action. While a libertarian legal system will, of course, have to face the difficult questions of the rights of foetuses, very young children and the mentally disabled (i.e. entities that we regard as human or at least consisting of human tissue but nevertheless may currently lack the ability to demonstrate rational action), it is not likely to be the recognition of individual humans as legal persons that is the greatest problem to preserving liberty. After all, our current statist legal systems cope with recognising the legal status of healthy adults, children, the mentally disabled, and so on, although the rights of unborn babies are still hotly debated. Indeed, we might even say that in some cases the benefits of legal personage are granted too freely when we consider that legislatures and courts often recognise animals (which may demonstrate some similarity to human behaviour but otherwise demonstrate no capability of rational action) as possessing rights. From the point of view of preserving liberty, it is suggested that the more urgent task for a libertarian legal system is not to define which entities are legal persons but, rather, to preserve the content of the rights that a legal person enjoys. In our statist world today we can quite clearly see that it is mostly the dilution of a person’s rights that leads to the loss of that person’s liberty and not the classification of a person as being “without rights”1. What each person appears to be able to enjoy in contemporary legal systems is not self-ownership and the right to private property; instead, it is a concoction of artificial and invented rights and obligations that are bracketed under the term human rights. Human rights, however, are never termed in such a way as to confer their full, irrevocable benefit upon each individual human; rather they are a buffet-selection of open-ended and often contradictory ends that, in most cases, should properly be categorised as goods rather than rights or freedoms. The so-called “right to life”, for example, could mean anything from your right not to be purposefully killed all the way up to your right to demand positive sustenance to keep you alive, the latter breaching the rights of somebody else. Your “right to free speech” may allow you to speak openly against government but does it permit you to break into someone’s house and force them to endure a lecture, thus invading their “right to privacy”? It is left up to government to determine whose rights in these situations should be upheld and whose should yield, meaning that no one truly enjoys any rights at all except by government gift. This is clearly insufficient in a libertarian legal system. Whoever is endowed with the term legal person is entitled to the full and unbridgeable right to self-ownership and to ownership of the goods of which he is the first owner-occupier or the latter’s voluntary successor in title, not some charter of ends that the court has to take it upon itself to balance. There may be some modification of this position in order to accommodate, for example, children who are not yet able to demonstrate rational action to its fullest extent. But for regular, healthy adults the entirety of their right to self-ownership and their full obligation to preserve the self-ownership of other individuals should be applied without exception. Any laws or norms that breach this principle would be invalid as libertarian laws2.

Original Appropriation of Goods

A libertarian legal system having determined which entities are legal persons, it will then be required to determine how legal ownership of previously ownerless goods will be recognised. There are several criteria that a libertarian legal system is likely to require:

  1. There is a tangible good;
  2. Ownership of the good is claimed by a legal person;
  3. The legal person has put the good to productive use;
  4. The productive use has ring-fenced the good from matter not put to productive use;
  5. The good is ownerless.

The first criterion – that there should be a tangible good – might seem trite, but it is worth emphasising that there needs to be matter that is the subject of a physical conflict. While contracts, as we shall see in part three, can deal with property that is not yet in existence but is proposed to come into the ownership of one of the contracting parties in the future, it is clear that claims of present ownership must be over existing goods. Not only will this requirement exclude unreal or imagined entities or objects, but so too will it not capture thoughts, feelings and ideas. Space precludes us from examining in detail whether libertarian legal systems will recognise so-called “intellectual property” but here we must assume that it will not and that all claim of ownership will be over real, tangible, existing goods. Secondly, it should be self-evident that only a legal person can take legal ownership of goods. Objects and animals, as well as not possessing the right to self-ownership, cannot also possess the right to own goods external to them. A banana, a mere unconscious object that cannot own itself a fortiori cannot be said to have rights of ownership over other such objects. Self-ownership is, therefore, a pre-requisite for owning something else. Thirdly, a legal person must have put the good to productive use. In libertarian theory, the first user-occupier of a good is the one who is able to claim the right to original appropriation of that good and, thus, ownership over it3. A libertarian legal system will therefore have to determine precisely which actions will satisfy the demonstration of putting a good to a productive use. Is, for example, touching an object enough to satisfy this criteria, endowing the individual who laid his finger upon the good the exclusive right to its enjoyment? Or is something more required? The key test is likely to be whether a given action produces another good from the original good, in other words it is diverted from delivering one stream of utility to delivering another. This could be something as simple as moving an object from one place to another, gathering logs to use as firewood, removing weeds from soil to plant seeds, and in most cases simple possession may suffice to prove one’s claim to title. The importance of this criterion lies in the fact that a person must be able to demonstrate that he was the first who recognised the good as a scarce and valuable entity and so deliberately laboured in order to ensure that the good provided its highest valued utility. Fourthly, the productive use of the good must extend over the entirety of the physical good claimed and thus serve to clearly ring-fence the good from matter that is not put to productive use. As we said in part one, the purpose of rights and ownership is to avoid or otherwise resolve conflicts arising from scarcity – this cannot be done unless the matter over which a person claims a right is encircled by a clear boundary, a red line over which people know they must not cross. For most self-contained objects, this will not present too much of a problem. One log of wood for instance, in bounded within the physical limits of the good itself – when I move it from the wood to my home in order to use as firewood it is clear that the extent of my productivity is limited to that log and not to an indeterminate quantity of the forest. It becomes more difficult when this is not the case. One example that is used frequently as an objection to the homesteading principle is if several people are swimming or sailing to an ownerless island does the first one to reach it claim the entire island? Or if a person stands on a cliff and urinates into the sea, is he entitled to ownership of the entire ocean? The answer is no, because the extent of the person’s physical presence has not served to ring-fence the entire island or the entire ocean within his sphere of productivity. The person’s valuable ends were achieved without any productive effort being extended beyond his immediate location. If a person wishes to claim ownership over the entire island or the ocean he must be able to demonstrate the extent of his productivity over that entire matter. His ownership will stop at the point where evidence of productive use also stops, and the matter within that sphere of productivity will be ring-fenced. There will be cases where a person may have exerted (at least in his mind) productive effort but there is insufficient evidence to prove that such an effort has ring-fenced property. The most typical type of example will be on boundaries of homesteaded land. If a person has homesteaded an allotment, that part of the garden where crops have been planted and are growing will clearly be part of the ring-fenced allotment. However, at the boundary of the allotment, will say, evidence of a dropped tool a few metres from the nearest crop, or a single footprint made when the gardener stood back to view his work, serve to extend the boundary of the homesteaded land to these locations? Clearly, if the gardener had erected fencing to close in his land then this would itself consist of productive use and this problem would not exist. A related problem is where productive use has apparently extended to only part of a good yet an individual alleges that the whole good is necessary to fulfil his ends. An example is if I draw water daily from a small lake by standing on its edge and then someone else begins to draw water from the other side, can I complain that this latter person is violating my private property? A libertarian court is likely to conclude that the answer is no as if the entirety of the lake was of value to me then I should have extended my productive efforts to ring fence the whole thing. Instead, my only productive acts extended to a small portion of the water available each day thus I did not demonstrate that the remainder of the water was of any value to me. Water rights are, of course, a complicated issue, especially with regards to flowing water but we can acknowledge that in clear cases where it was possible to fully homestead a good and that opportunity was not taken a person cannot later complain that his rights were usurped. Furthermore, the lack of clear boundaries of productive action would lead to obvious absurdities. Whenever a person puts anything to productive use this matter will be connected to the entire Earth – nay, the entire universe. Was the first person who trod on the virgin soil of the planet able to claim ownership over the entire thing? Fifthly and finally, the good must, of course, be ownerless and no one else must have previously satisfied the criteria we have just elaborated. If another person has done so then this latter person’s title trumps that of the claimant. An important consideration in this regard is that a libertarian legal system will have to determine which actions of a person who owns a good are sufficient to determine the abandonment of and, hence, the loss of ownership over that good. This is important for two reasons – first, to determine if a subsequent person may extend productive use over the good and thus claim ownership over it without contravening the rights of the previous owner; and secondly, to determine if the first owner is liable in the event that the good physically interferes in someone else’s property. If, for example, a person builds a house and, after a period of time, abandons it and it falls into disrepair it may subsequently collapse into a neighbouring dwelling. If the original owner of the collapsed property still owns it then the owner of the damaged, neighbouring property may be able to sue him; if not, and the collapsed house is ownerless and is wholly placed back into the sphere of nature then the collapse is of the same ilk as a tree falling or a lightning strike and so the owner of the neighbouring property will be without remedy against anyone else. As we shall see, the contract is one method of exercising the abandonment of a good by transferring it to another individual and the terms of contracts may selectively nullify the original owner’s liability for past actions vis-a-vis the property, transferring this liability to the new owner.

Conclusion

Having, therefore, outlined how a libertarian legal system will determine who has self-ownership and how the original title to goods will be established, we can now, in the remaining parts of this series, turn our attention to specific causative events of legal liability.


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Please note that this post received minor revisions on January 16th, 2018.

1This is not to suggest, of course, that attempts to categorise individuals as being below the status of full a legal person have not been made. In the former Soviet Union, for example, a declaration that a person was mentally disabled and thus subject to fewer rights (if any) was a convenient method of disposing of political opponents. Nazi racial doctrine regarded certain races as being sub-human although that creed’s inability to think in anything other than collective rather than the individual perhaps makes little difference. Furthermore, the current war against terror seemingly allows governments to categorise so-called “terrorist suspects” as “enemy combatants”, suspects who have been denied the full rights due to that latter category under the Geneva Convention.

2The legal status of collectives acting as a single, legal person – such as incorporated associations and companies – we will not discuss here.

3In addition there are also easement rights but we shall, for the sake of brevity, concentrate on ownership rights.

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

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

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

What is a Law?

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

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

Law and Enforceability

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

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

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

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

Legal Systems

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

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

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

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

Law and Objectivity

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

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

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

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

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

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

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

A:       “Competing law courts”

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

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

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

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

Legislation or Judge Made Law?

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Climate Change and Social Rules

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Human-induced climate change (formerly known as “global warming”) is, currently, a mainstream political topic that free market advocates frequently wade into, and rightfully so. When government threatens to use this excuse to expand its level of control both nationally and internationally, lovers of liberty cannot help but be drawn into defending their cause against this onslaught.

Nevertheless it is submitted that too much effort is directed at tackling the issue of whether human-induced climate change (through carbon dioxide emissions or whatever) is happening, and that there are insufficient attempts at clarifying precisely what, if anything, should be done under the assumption that it is happening. While it is interesting to debate the truth of the science and the motivation of the parties involved (especially the Intergovernmental Panel on Climate Change (IPCC)), we must submit that it is not within our capacity as political philosophers to tackle the conclusions of the natural scientists (although when it comes to the climate there is an arguable epistemological case against drawing too many incisive conclusions from such research, plus against the assumption that, if climate change is happening, it would necessarily lead to “catastrophic” or even unfavourable results, or that such results could not be adapted to). Rather, the more interesting question for libertarians is the extent to which (if any) social rules and political philosophy apply to a phenomenon such as climate change.

Let us start by outlining a few key assumptions:

  • Climate change is happening;
  • It is induced by purposeful human activity and, specifically, by net carbon dioxide emissions;
  • The phenomenon cannot be attributed to any identifiable individual or group of individuals; rather it is only the action of all humans in concert, although specific areas of the Earth and particular industries may exhibit greater contributions owing to the level of their industrialisation;
  • The phenomenon neither perceptibly nor directly harms any individual or property at any particular moment in time. The effects are gradual and cumulative, causing changes that might only be measurable (let alone noticeable) after a long period of time.

It is these last two facts that are often cited as the necessity for government intervention – that as no one individual suffers any sudden, appreciable cost from climate change that can be traced back to the action of another identifiable human being, it is alleged that neither the free market pricing, profit and loss system, nor traditional tort law, can control the phenomenon. Rather, climate change is one vast negative externality of human behaviour, in which we are slowly but surely sowing the seeds of our own doom with each step of economic and industrial progress. This allegation we will come to later. First of all it is important for us to understand precisely in whom the “right” to prevent climate change from happening is vested.

Rights and Obligations

The Earth and the matter it contains – the trees, the sky, the land, the oceans, the birds, the bees and so on – are all unconscious entities that have no desires, no feelings, no choices and no rational actions to bring about preferred ends. “Mother Nature” and the providence she brings may be an apt and vivid representation of the world and of all of its natural gifts, but it must be realised that she is only a metaphor. There is no conscious entity that can possess any “right” to be preserved, nor owed the obligation to be preserved. Any talk, therefore, of climate change being a “betrayal” of the planet and continued acts of industrialisation and pollution as somehow being “treasonous” are complete nonsense. Ascribing rights to the Earth is as ridiculous as ascribing it obligations – a pool of water, for instance, is not regarded as a murderer when someone drowns in it. Rather, these elements – rights and obligations – only arise between morally responsible beings, i.e. those beings that are endowed with moral choice. Any rights and obligations that arise as a result of climate change are, therefore, strictly between humans and not between humans and the planet. Even if the Earth did have “rights” in any meaningful sense, they would still have to be executed and enforced by human beings against other human beings.

For the same reason neither do “future generations” possess any right to enforce climate stability. Just as much as unconscious and lifeless matter, unborn or hypothetical persons cannot possess rights and responsibilities. One may judge it a very good thing to bequeath to our descendants a legacy of the world in a particular state but, again, this would be a judgment of existing humans and not of their unborn children and grandchildren. The right claimed is, once more, of those currently living people who wish to see the world continue in a certain state for their heirs.

Related to this aspect is the view that the Earth has some kind of inherent beauty or a universal and almost omnipotent splendour that transcends the existence of human beings. Far from co-existing with the Earth in a symbiotic relationship, humans are seen as a cancerous scourge that is destroying the planet’s innate and immovable qualities, a scourge that may (in some more extreme versions of this view) permissibly be killed in order to protect and defend the intrinsic magnificence of nature. All of this is nonsense. The Earth has been through many different modes of being throughout its approximately six billion years of existence. Whether it is better existing as a green and lush land of forestry, as a dead and lifeless cinder orbiting the sun, or covered in sea, ice, volcanoes, or whatever else, is a judgment that is made by humans. Absent any human there is no state in which the Earth can be that could be said to better or worse, beautiful or ugly, harsh or gentle, and so on. Even relatively more objective criteria such as whether it is “warm” or “cold” are judged against the temperature that is most comfortable for human existence. Climate change is not “harming” or “destroying” the planet. It is only changing it from one form into another. It requires a thinking, desiring and choosing human being to determine whether the form the Earth is in (or that to which it is being changed) is preferable. If this particular epoch of the Earth’s existence is especially and inherently satisfying, appealing, and worthy of preservation then this is a human judgment that is not measurable by any universal criteria. If humans are inducing climate change the effect of this is solely upon the preferences of other humans – and not upon the non-existent soul of the Earth. The question of climate change is therefore an interpersonal human matter, and not one that is between humans and the planet.

There is, therefore, no special body of rights and obligations that emerges solely because of climate change, and all discussion of the morally permissible means to deal with climate change must engage with the question of the rights and obligations of existing humans to prevent it. If, then, we take this approach, it appears at first blush that the problem of climate change may reduce to being simply one of the aggression of one person (or set of persons) against another. If the actions of person A on his property A1 causes damage on property B1 that is owned by person B then person A is liable. Can our discussion of how this harm can be prevented simply be the stock one of whether government should wade in and do so or whether the free market should? Unfortunately this approach is not likely to be adequate for the very reason we mentioned earlier. There is no one identifiable victim of aggression and there is no one identifiable perpetrator. It is the action of all humans in concert that is causing these changes to the climate that have allegedly deleterious consequences upon all human beings. Surely only the strong hand of the government is sufficient to prevent its disastrous results? A response to this, however, requires not capitulation and surrender, but rather, a deeper investigation by political philosophers (and libertarians in particular) into the nature of the problem of climate change in order to see whether the circumstances justify any interpersonal regulation at all. To this we shall now turn.

Humans and Nature

A human, in all of his endeavours, faces two sources of difficulty in the world – the state of nature on the one hand and the actions of his fellow humans on the other. Nature, that is, the world in which a human finds the environment around him, can be a harsh benefactor. When humans first trod on the virgin soil of the Earth, the availability of materials, water, and foodstuffs may have been plentiful and abundant in a raw and unbridled state. However, harnessing those resources and transforming them into arrays that would allow them to meet a wide range of ends would take centuries of toil and capital accumulation, something that did not significantly get off the ground until the beginning of the latest two centuries’ of human existence. Furthermore, natural phenomena such as the variability of the weather and the cycle of the seasons serve only to make this task more difficult. Nevertheless, whatever nature throws at man is something that, in the first instance, has to be taken as a given. Whatever configuration of elements nature provides to humans, whether it is good or bad, gentle or harsh, safe or dangerous, plentiful or mean, has to be dealt with as it is found. Only subsequent human action, in relation to what nature has provided, can bring about a change in the situation. Nature does not possess any choice in how it presents itself; it is simply under the orders of the laws of physics to do that which results. One could not, for example, “reason” with the ground to start growing crops, or shout at the clouds to provoke a rainfall. All of the problems that nature throws at humans, therefore, can only be overcome by taking nature as a given, by understanding its reality and by then learning to act with it symbiotically. We manufacture a hammer head out of metal and not out of sponge because metal is hard and will force a nail into a wall. We make a bucket without holes because otherwise water would leak out to the ground. We make knives sharp because a blunt object would not exert enough pressure to slice through meat or bread. We fertilise the soil in the winter, sow the seeds in the spring, tend to the ripening of the crops in the summer, and finally harvest in the autumn. In all of these cases we are acting in accordance with what nature has given us in order to meet our ends. It is true, of course, that as we progress we can overcome some of these problems with greater ability. Artificial heating and sunlight can, to a degree, overcome the problem of restricting crop production to the seasonal cycle. But still, this is only possible because we have learnt about the nature of energy and electricity, and we have still had to harness these in a way that is compatible with their nature. We do not click our fingers to make electricity appear; rather we have to generate it, lay cables to transport it to a heating or lighting outlet, and back again to complete the circuit. So even when we get to very advanced stages of production, capital accumulation and technological insight, we are always acting in accordance with what nature gives us. We cannot change this fact of existence. Our only option is to understand more incisively how we can use whatever nature provides.

Humans, on the other hand, are very different. Humans do not merely exist in the universe as dead, unconscious matter whose actions are only the result of physical laws or chemical reactions. Rather they possess choice, choice that is, in turn, motivated by desire and leads to concrete actions. As a result these choices can be debated, challenged, reasoned with, and altered at will. The substance of a human’s action, therefore, in contrast with the substance of the actions of unconscious matter, do not have to be taken as a given. Indeed they cannot be taken as a given because there simply is nothing to be taken as it is – every action is the result of a new choice and a new decision, not merely a repetition of what has happened before. Even the decision to repeat a previous action – like driving down the same road to work every morning – is a new decision to carry on doing something that was done before. Although it may be estimated with a varying degrees of probability, there is nothing that is ultimately and categorically predictable about the substance of a human’s action to the total exclusion of an alternative, and any hypothesis concerning what a particular human will do at a particular time and place is a personal judgment based on empathetic understanding.

Both of these factors – nature on the one hand, and fellow humans on the other – are sources of the overriding and predominant concern of human existence – scarcity and the conflicts that arise from scarcity. Nature does not produce enough resources for a human to meet all of his needs without the intervention of labour – choices must be made to resolve conflicts between ends that are held dear. Other humans compound this by desiring the use of resources that could meet your ends. The resolution of conflicts from each source of scarcity requires a bifurcated approach. Conflicts arising from nature can be resolved only by gaining a greater understanding of that nature in order to use what is has given to the furthest possible extent. Conflicts arising between humans, however, are resolved by social rules that derive from morality and how these rules deem it appropriate for a human to act in order to avoid conflict with another. The strongest of these rules are laws, those which may be enforced violently, as opposed to mere custom, manners, traditions and so on. It is with these strong rules to which the standard libertarian approach is non-aggression, self-ownership and private property. It is individual humans who have values, choices and desires; it is individuals who conflict over the ends to which the scarce means available must be devoted. It is therefore individuals who determine when there is a clash of values that needs to be resolved. It is the clash of individual wills that marks the realm of political philosophy separate from the realm of nature.

How, therefore, does human-induced climate change fit into this framework? Is it a conflict that arises out of inter-personal human interaction, in which case it is subject to social rules? Or is it more akin to an act of nature that must be dealt with as and when it arises? It is almost universally assumed that because humans are responsible for climate change in a strict, causative sense, that this automatically brings it within the purview of interpersonal human conduct and should be regulated by social rules. However, what we shall argue here is that simply because human purposeful activity causes an effect does not mean that social rules arise to control that effect. A person, X, makes an external piece of matter, some part of the Earth – whether it be land, wood, water, or whatever – the object of his action because he has recognised it as being scarce and therefore valuable. The result of his action is to transform – i.e. produce – the object (or “good”) from servicing one end to serving another. No other human expressed such a preference as if they had they would have already “homesteaded” the matter, or good, by making it their object of their action first. A human turns this piece of material into servicing a particular need because he prefers that need and the state of being of the good that will meet that need. If another person, Y, comes along and attempts to make the same good the object of his (Y’s) action then the result of this is to divert it away from X’s ends towards Y’s ends. Y’s conduct is, here, subject to the regulation of social rules because X identifies a violent intervention to his property that is attributable to the chosen and purposeful action of Y. There are three key elements in this situation:

  • Goods;
  • An identifiable human (X) who has diverted the goods to a certain end;
  • An identifiable human (Y) who has chosen, deliberately, to divert the goods to another end.

Take away any one of these elements and any talk of social rules becomes meaningless. First, it should be obvious that if there were no goods then there would be nothing to conflict over and social rules would serve no purpose. Secondly, if X did not exist or was not identifiable then there would be no conflict as the good would be ownerless upon Y’s arrived. And finally, if did not exist, or if the intervention of Y was not carried out by a human but, say, by an act of nature then social rules would serve no purpose as they cannot regulate unthinking and unconscious objects.

With climate change, we do not have just one of these elements missing – rather, all three are marked by their absence. First, it is not clear that there are any identifiable goods that are violently interfered with. In other words, is the climate that surrounds a property considered a part of that property (or something that, if changed, can make a violent, physical intervention to that property) or is it something that simply provides varying external benefits and burdens to property which will affect their relative values, in the same way that a conveniently located school might enhance the desirability of nearby houses? Whereas a hurricane would clearly cause untold physical damage and havoc to a property, changes in rainfall, sunshine and temperature may make no appreciable physical intervention at all while, at the same time, enhancing or reducing its desirability. If so, then good weather is tantamount to being something that provides an external benefit to property without intervening, physically, with the property itself. If this is true then other people cannot be forced to continue providing external benefits to your property, nor can they be prevented from carrying out actions that will stop them. If the school decides to close, its owners and managers choosing to devote their efforts elsewhere, and this affects the desirability of your property, few would suggest that you should have a violently enforceable right to enslave them and keep the school open. Or, if my pretty garden enhances the value of your property, should you have the right to force me get out my wheelbarrow and spade? Secondly, there are not necessarily any identifiable individuals that own property that has suffered physical intervention by climate change. Thus far most of the alarmism is only based on hypotheses of future effects and, furthermore, has come not from individual property owners but from governments, their sponsored scientists, activists, environmentalists and political groups. Indeed, given the abysmal record of governments in protecting property from all other kinds of manmade threat we must be extremely suspicious as to why they so enthusiastically champion their own resolution of this one. Finally, and, perhaps, most importantly, climate change is caused not by any one individual but by the action of all humans together. The effect is not caused by the action of any identifiable individual human or identifiable set of humans but is the consequence of the purposeful activity of multiple humans acting independently. A requirement of moral responsibility, and thus, the regulation of an action according to social rules is the individual consciousness that chooses that action. One, single human possesses this consciousness, and this enables him to become morally responsible for actions that are taken even when he chooses to act as part of a group of individuals. All humans together, however, do not possess any individual consciousness that can be held morally responsible for its actions. Humans as a whole, as opposed to individually, are not an individual, sentient, or conscious being. In their collective they are not, therefore, divisible from nature but must, very much, be taken to be a part of it. This is not intended to make the genealogical point that, along with the vegetation and animals, we are all part of the same rock orbiting the sun. Rather, as any one human approaches and considers phenomena arising from humans acting altogether, he must treat and deal with them as phenomena of nature and not as those of an individual being. This still applies even where the groups can be localised – for example, heavily industrialised countries such as the United States will churn out more net carbon dioxide emissions than third world countries (which are often alleged to bear much of the burden of climate change). Simply because people are forcibly “united” by their government or state identity does not mean that their individually chosen action, or action chosen in concert with other individuals, can be held morally responsible for the harm alleged. But even if it did there would still be an enormous problem with causation and proportionality. It is just that an individual should be held responsible only for the harm that he causes and only to the extent that he caused it. How do we know whether a person’s or company’s carbon dioxide emissions caused a change in climate that affected another person’s property and if we do know, then how much? We can, of course, measure net contribution to carbon dioxide emissions. But what if the harm would have happened anyway from everyone else’s contributions and neither the addition nor subtraction of this one person’s emissions would have made any difference?

Indeed, it is not at all surprising that humans would exert some kind of collective side effect upon the Earth that is not reducible to the purposeful behaviour of any single one of them. Larger quantities of anything generally have effects that are either unperceivable or negligible when smaller quantities are considered. Groups of humans have been known to create seismic activity when they jump up and down at the same time1. Millions, if not, several billion people are always walking upon the Earth at the same time. Thus far this has not created any noticeable problem. However, if we suddenly started to see minor tremors causing cracks to appear in buildings from all of those “selfish, profit-seeking” humans walking everywhere, would the most sensible response be to call upon government to regulate how many paces everyone can take in a day, and when? Or should we just to accept the phenomena like an effect of nature and ensure it is accounted for in building design?

Conclusion

Summing up the above argument, therefore, we may conclude that where the purposeful activity of all human beings but of no individual human being, or identifiable group of the same who are purposefully acting in concert, creates certain effects then these effects must be regarded as akin to effects of nature and not of an individually, morally responsible being. The collective “humans” possesses no individual moral responsibility that can be held to account by social rules. Simply because something is induced by the actions of all humans does not mean that any one of the humans is responsible and can be penalised by another human.

The appropriate response to human induced climate change, therefore, is the same response to all of the other problems that nature throws at us – by taking it as a given, understanding its reality as deeply as we can and then learning to act with it symbiotically. This may allow us not only to avoid it but to also, perhaps, use it as an opportunity, as a resource, in ways that, at present, we are not able to consider. Even at the moment it appears far from certain that the effects of climate change will be universally bad and will not have mitigating or even beneficial results. Indeed, those who are so concerned about how we leave the world for our descendants might want to consider whether it is just for us to deny them these possibilities. Nevertheless we should end by saying that none of this means that people should not, individually, act to preserve the climate as it is by restricting net carbon dioxide emissions if that is how they wish to proceed. They are quite welcome to restrict their own emissions and to persuade others to do so. But, as in the pursuit of all other values, they should do so peacefully and voluntarily and not muster the violent hand of the government to enforce it for them at the expense of those who do not share that view.

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1One recent example is when Seattle Seahawks fans jumped up and down in celebration during a game on December 2nd 2013: http://www.bbc.co.uk/news/world-us-canada-25205548.

Anti-War and Anti-State

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The furore over the recent attempt of the UK government to commit military force in Syria in concert with the US government revealed a widespread popular opposition to war that appears to span the entire political spectrum. Indeed, libertarians must admit that the ideological left, with its anti-imperialist and anti-war profiteering motive, has often been a louder voice in castigating the warmongers and interventionists in conflicts past and present.

Nevertheless it must be emphasised that if one is to be truly anti-war then that commitment alone is, regrettably, not sufficient. For war is always propagated by states, between states and for the benefit of states. Libertarians often point out that “war is the health of the state”, permitting the government to suspend the status quo and enact all manner of heinous oppression and control that would be unthinkable in a time of peace, measures that, curiously, do not disappear as soon as the alleged enemy is vanquished. But as much as it is true that war feeds the state so too does the state feed war, not only siphoning off resources from the productive sector towards the creation of bombs and missiles, but, crucially, the very desire to create a bigger state makes war more likely. Many anti-war activists of the left have no problem with government metastasising to whatever size in economic and social matters, creating alleged “fairness” and “equality” and whatever other emotive but elusive goals happen to sound most appealing. The aims may be innocently honourable enough but it is ridiculous to think that the means of the state can ever be used peacefully, let alone to believe that a large state can be the promoter and preserver of peace. There are three key reasons for this.

First, the state always means conflict. The precise means at the states disposal, the only means that it can use – violence – results in the constant diversion of scarce resources away from the ends of their owners and towards the ends of others. The state is effectively engaged in a constant war on its own citizens, forever plundering and pillaging them to fund their lavish lifestyles and to line the pockets of their friends under the guise of wasteful socioeconomic programmes. Foreign war, fundamentally, is no different and every motivation for it ultimately reduces to a battle over resources. It is therefore somewhat bizarre that anti-war activists are content to allow a government to war against its own citizens but, for some reason, as soon it comes to doing the same against foreign nations then all hell breaks loose. However correct this latter reaction may be, not only is it hypocritical but it is also dangerously naïve to expect the state to restrict itself to peace and harmony abroad when it will never even do so at home. Nazi Germany, for example, was met with such ambivalent dithering in the interwar period precisely because its ideology – big government control and intervention – was of no particular distinction from that which prevailed everywhere else at the time. The only difference was that it was prepared to take this ideology to its logical end, additionally piling on racial dogmas and nationalistic overtones that resulted in crimes which, however horrific and unforgettable, obscures the basic similarity between Hitler and, say, Roosevelt.

Secondly, big states attract the attention of control freaks and the greedy. The more money that is stashed in the government and can be leeched away by bloodsuckers and parasites then the more alluring it becomes to try and take a slice of that pie – and once that slice is taken, how wonderful it would be to take another slice, and then another after that! Finally when government intervention naturally starts to stifle productivity and there are no more pies left to be eaten, the siren song of war becomes ever sweeter to governments and their sponsors, not only as a distraction from their own economic mismanagement but as a way forward to secure a flow of resources from abroard and to tighten their grip on the domestic citizenry through lasting wartime or “emergency” measures. Neither must we forget that there is, among the political class, an alluring quality to being a wartime leader or “warrior”. Seeing off an alleged terrible enemy and apparently saving one’s people from invasion (although it doesn’t even need to get this far) is judged as being more heroic and worthy of the highest honours and decorations whereas creating “mere” peace and prosperity is apparently rather dull and uninspiring. Indeed, the most highly rated leaders all made their mark during wartime or were at least warmongering – Lincoln during the War between the States, Roosevelt and Churchill during World War II, and Reagan and Thatcher during the Cold War, for instance. Only when a conflict is so obviously pointless, futile and/or unjustified – such as those in Vietnam and Iraq – does this strategy backfire, as it did upon Johnson, Nixon and the younger Bush.

Finally, the degree of government intervention necessary to create alleged social or economic ends have only been met during a legacy of wartime control. The New Deal, for example, was modelled upon the wartime regime of Woodrow Wilson; World War II on the New Deal; and the post-war “Great Society”, the fight against poverty and the Civil Rights era all came after these wartime regimes were firmly in place. The citizenry have to be “united” (or worn down) by something such as war before they can ever begin to accept the degree of interference necessary to promote big government measures during peacetime. Ironically, therefore, a lot of the cravings of the anti-war left are reliant upon war if they ever have the hope of seeing the light of day.

In sum, therefore, to be anti-war but pro-state is the epitome of all dangerously ill-informed and contradictory positions, giving birth to the very thing it seeks to destroy. Rather, to be anti-war one must also be thoroughly and unreservedly anti-state, recognising this evil entity for precisely what it is – perpetual and endless conflict and violence. Only when we are well and truly rid of this scourge will there ever be a chance for peace.

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The Limits of Libertarianism

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A distinct disadvantage of advocating a libertarian society as opposed to some sort of collective is that libertarians seldom win the emotional battle when pitted against competing ideologies. Democratic socialists and redistributionists can effectively wear their bleeding hearts on their sleeves, forever waxing lyrical about their concern for the poor, the sick, the elderly, and which ever other group appears to be in need of pitiful platitudes at this particular time. Libertarians, on the other hand, in calling for the right of every person to own his/her income, appear to advocate nothing more than greed and selfishness, the slippery slope to the disintegration of society as we each ferret ourselves away in an increasingly atomised existence.

This is a misunderstanding that is common not only among the opponents of libertarianism but also among libertarians themselves and it is high time that the latter stood up for themselves and realised how to counter these straw man attacks. Libertarianism is not and never has pretended to be a complete philosophy of how a given person should live his or her life. It is only states that each person should be given the freedom to choose what he does with his person or property. It does not mean that because an individual should have such a choice that he should keep his person and property for himself. One of the options is that he could, for example, give some of his money to the poor. It is, therefore, quite open to and consistent for the libertarian to state that a person should do X, Y or Z but that such a person should not be forced to do so. Simply because a person cannot be forced to do something does not mean that libertarians do not, individually, believe that people are subject to other moral obligations; it’s just that libertarianism itself stops short of discussing them. So as long as these obligations are not violently enforced then they are compatible with libertarianism, but do not form part of it.

Collectivism, however, is markedly different. For when collectives posit a certain forced redistribution of wealth and income amongst society this is usually based on an all-encompassing moral and political theory. So, for example, a collectivist might state not only that a person should donate a portion of his income to the poor but that also he should be forced to do so. It is this aspect that makes collectivists look more “caring” and “sensitive” to the needy – the fact that they are prepared to “enforce” their moral outlook seems to show they mean business. Libertarians, in contrast, come across as cold and uncaring, relying only on a vaguely defined notion of voluntary charity to take care of society’s ills.

There are three possible ways in which this may be countered. The first is to admit that libertarians are somewhat guilty of contributing to this view as few have developed an additional moral philosophy on top of their libertarian beliefs (although we can perhaps excuse ourselves given that the weight of government violence and intervention in today’s world is more than enough to be getting on with). But we must either turn our attention to developing our own, private, moral philosophies on which our passion for liberty forms the core, or, at the very least, we must be prepared to acknowledge the problem and explain the compatibility of any moral philosophy with libertarianism as long as it permits the individual to choose.

Secondly, contrary to popular opinion, the history of ideas has seldom been one of “liberty” vs. “collectivism”; rather it has been that of one version of collectivism versus another. As Mises pointed out, everyone has their own idea as to how they think goods and resources should be distributed throughout society: “In the eyes of Stalin, the Mensheviks and the Trotskyites are not socialists but traitors, and vice versa. The Marxians call the Nazis supporters of capitalism; the Nazis call the Marxians suporters of Jewish capital. If a man says socialism, or planning, he always has in view his own brand of socialism, his own plan. This planning does not in fact mean preparedness to coöperate peacefully. It means conflict”. (Omnipotent Government, p. 253). By pointing out this fact libertarians can demonstrate how, in a free world, everyone can pursue, in harmony, the ends that he believes are morally right with his own person and property, whereas to do so violently would just mean endless conflict with everyone else who happens not to share your view.

Thirdly, if a collectivist claims to care about the needy in society then we are entitled to ask why he favours a system that is almost guaranteed to make them worse off and why they oppose the very system – capitalism and freedom – that has been responsible for the most enormous increase in the standard of living in the whole of human history. Poverty is the state of nature of humans in the world; it is their ingenuity that has flourished through freedom that has allowed them to harness the powers of nature and increase the amount of wealth and satisfaction that we gain from them. If we compare the condition of human existence in 1800 (where 85% of the world’s population was living on $1 a day) to that of today (down to 20%) then we can see that freedom has been exceedingly good to the poor. Perhaps smart libertarians, accused of ignoring the plight of the needy, should raise this point and query whether, in fact, it is their ideological opponents who are really the ones who don’t care?

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