National Defence and Just Wars

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However much people may disagree on the proper functions of the state and however much people may argue about how those functions should be deployed, it is almost universally acknowledged that “national defence” – the protection of the citizenry from invasion by foreign states – is seen, together with domestic security and protection from private criminals, to be not only the primary function of the state but also its very raison d’être. Indeed, it is difficult to imagine how, without this function – given that it is joined at the hip with the state’s monopolistic use of force – there could possibly be any state whatsoever. Thus any opposition to government’s monopoly on security is expressed only by anarchists and those who wish to see an end to the state altogether.

In keeping with many libertarian commentators (for example, Robert Higgs in Crisis and Leviathan) we may acknowledge agreement here with the proposition that “war is the health of the state”, permitting a tremendous number of, at first, temporary, and then, enduringly permanent inroads into liberty that statists could only dream of during peacetime. The perpetual existence of a bogeyman, real or imagined, serves both to justify and to distract the average person from the state’s own increased privations upon the individual. However, what we wish to examine critically here is the validity of the assertion that “national defence”, so-called, is a proper function of the state as well as the question of whether any wars waged by states could be “just”.

First, the overwhelming concern of the individual is not “national defence” at all but, rather, defence of his own person and property – as well as the safety from harm of his friends and family. If defence of his person or property is his primary aim, however, surely he has more to fear from his own state rather than from any potential foreign invader? It is own state that taxes his income; it is his own state that has nationalised industries that he may use or work in; it is his own state that regulates what he may do, what he may choose to put into his own body or any other voluntary actions he may choose to do with other consenting adults. A change of forced rule from one state to another is not necessarily going to make any difference to any of this. One governing state may move out and another may move in with no noticeable change to the individual’s life whatsoever. Indeed, an invading state is normally interested in taking over the economic capacity of the lands that are eyed for conquest – it does not normally wish to reduce its prize to rubble and be left with a wasteland. To a large extent it will wish to leave infrastructure and existing property relations intact, particularly if it is to rely on the productivity of the conquered workforce. Indeed, the idea of the sanctity of the political border is relatively new in international relations and one that only really found concrete expression in the aftermath of World War I. Earlier, when wars were conducted by monarchs and royal families, territories used to change from the jurisdiction of one realm to another, simply switching ownership between monarchs and forming part of the victor’s private property. Indeed it was the wealth and power of the king, who owned his territory and his subjects, that determined the size of the realm. The day to day lives of the average folk were not likely to change a great deal. Today, if France and Britain were to have roughly the same kind of approach to private property ownership and towards civil liberties, what real difference would it make if the French government was to take over a chunk of Britain or the British to take over a piece of France? This fact betrays the real function of national defence, which is not to safeguard the person and property of the individual citizen at all. Rather, it is to protect the territorial integrity of the state and to defend the state and its rulers from being overthrown by other states and foreign crusaders. Just in the same way as one might erect a high fence to protect oneself from a bothersome neighbour, so too does the state use its monopolistic provision of “national defence” to protect itself. If this should be doubted and one is tempted to cling to the idea that government is there to protect us from evil foreigners, then why is it that the wealth, property and livelihoods of the citizenry are precisely what the state steamrollers over during wartime? Civil liberties are suspended, the news is censored, military slavery (politely known as “conscription”) is enforced, and all productive capacity is geared towards the war effort with food essentials heavily rationed and luxuries all but non-existent. It seems that protection of the people is the very last thing on the government’s mind when foreign threats loom large.

With the advent of democracy, where no one individual ruler “owns” any jurisdiction but, rather, it is supposedly run by a caretaker ruler for the good of “the people”, some kind of different criterion other than the extent of the property ownership of the king was needed to justify to the state’s prerogative to “national defence” and to mask its real purpose of protecting itself. Something had to be done to induce, in the population, the fear of foreign rule. Hence states began to invoke nationalistic sentiments in their populations and with it the sanctity of the political border. For without nationalistic fervour populations would have little willingness to defend the state from a foreign state. Bar nationalism, patriotism and strong cultural identities what reason would there be for a person to avoid being ruled by one government or another? Fortunately for the state all of this went hand in hand with the prevailing ideology of democracy and the economic policies that soon emerged – and, tragically, with horrifying results. First, democracy effectively nationalises the citizenry and makes everyone under the auspices of a particular government symbiotic with that government. Hence, when a foreign state invades it is not only “the” government that is under threat of takeover but “our” government. Second, as “democracy” has become synonymous with freedom, openness, and pluralism a natural fear of “other” forms of government – monarchs or dictators – is engrained. The terror of losing democracy to something that is, on the face of it, more despotic is used as a fervent justification for not only defensive but also offensive military action today. Thus, defence is imbued with ideological purpose. Third, state-dominated and collectivist economic policies naturally aggregate the people under the identity of the government. Under collectivism, the relevant economic unit is no longer the individual, choosing to fulfil his ends as best as he can with the available means, but, rather, “the nation”. All productive resources and all productive enterprises are geared by “the nation” towards “the nation’s” goals. Nations, not individual people and private entities, now compete with each other. Inputs, outputs and processes are heavily aggregated into relatively meaningless concepts such as “Aggregate Demand”, “Gross Domestic Product” and even the concepts of “exports” and “imports” are only really important if one views the world in political borders. Furthermore, the inefficiency and impoverishment caused by collectivism naturally creates a drive towards autarchy and xenophobic envy of the wealth and resources of neighbouring states. Under complete free trade, if Ruritania is predominantly agricultural and specialises in growing food, whereas Mauretania specialises in heavy industry and manufacturing, Ruritania would export food to Mauretania and the latter would use this to then fuel its industries and produce manufactured goods that are exported to Ruritania. Both countries benefit from the specialisation of the other and from trading their wares – indeed this is nothing more than division of labour by state rather than by individual. If, however, Mauretania’s government begins to interfere in its economy, its industries become less productive and less competitive; while the domestic market can be ring-fenced by protective tariffs, no such luxury can be imposed on the foreign market and Mauretania will find that demand for its exports in relation to other countries starts to dwindle. Thus, Ruritania will start exporting more food to other countries and less to Mauretania, leaving the latter with a food shortage relative to population. Hence comes the call from Mauretania’s government, recognising the resulting impoverishment, that Mauretania needs “self-sufficiency” in food. This was precisely the case of Germany before World War II, a heavy manufacturing nation that relied upon imported food, with food self-sufficiency being a major motivation for Hitler’s pursuit of lebensraum in the largely agrarian lands East of Germany’s borders. Indeed, Nazi Germany, a fascist-collectivist economy with potent – even doctrinal – nationalist fervour that resulted in one of the most horrific racially motivated exterminations in the whole of history is an instructive case that demonstrates the extremes of nationalism bred by collectivism, and this fact raises a pertinent question. If Nazi Germany was so horrible then why was it met with such mute opposition right up until the invasion of Poland (except for the bleating of Churchill during his so-called “wilderness years”)? Why was the Versailles Treaty so willingly shredded clause by clause until it was merely waste paper? Why so much willingness to accommodate and co-operate with such as awful regime? One reason surely has to be that under the post-World War I gold exchange standard, the New Deal and the pursuit of Keynesian macroeconomic policies to combat the Great Depression, everybody – not just Germany – was moving towards collectivist economic planning. Indeed, the New Deal and the associations and agencies it bred were modelled on those in Mussolini’s Italy. Policies such as the Smoot-Hawley Tariff Act served to segregate each country as a closed economic unit and drive them towards autarchy. A related aspect of big government economies and welfare states is that they begin to view their populations as burdens as much as productive units – incessant consumers and eaters who put relentless pressure on “the nation’s” resources. Although today we can see this resulting in the concern of intellectuals with supposedly “excessive” population growth, in earlier days it helped produce the Eugenics movement, which had the aim of reducing those of lower “social and genetic worth” – i.e. the unproductive resource consumers –  and was largely discredited in the aftermath of World War II as a result of the Nazi policy of racial sterilisation. Perhaps even more visually embarrassing is that school children in the US recited the pledge of allegiance with the Bellamy salute – a variant of the Nazi salute. Any ideological weapons against Nazi Germany were, as a result, able to achieve only a blunt impact simply because they were not so sharply delineated. The uncomfortable truth is that Nazi Germany was fundamentally no different from any other state at the time – it’s just that Hitler took these fundamentals to their logical conclusion and the results were horrific. Indeed, “national defence” implies the preference for and superiority of one’s own race, culture and creed – for if these things do not matter to the individual citizen then so too does it not matter which particular foreigner takes over the government and starts delivering the mail. It is no small wonder why it leads to xenophobic hatred and is the breeder, rather than the solver, of conflicts.

Turning now to the economic case for national defence, this generally rests on the idea that, as the consumption of national defence is “non-rivalrous” and “non-excludable” that, left to the free market, it would be underprovided owing to a significant “free rider” problem. Without getting too much into why such concerns in and of themselves provide no justification for the state provision of a good or service, we can state more simply that it is only the precise methods of defence as chosen by the state that are non-rivalrous and non-excludable. An aircraft carrier serving A does not interfere with its services towards B, nor can its services be excluded from either one of those people. But there is no reason to suggest that aircraft carriers must be provided in order to maintain defence of one’s person and property, which is supposed to be the alleged purpose of national defence. Private defence operations may well produce methods of defence whose consumption is rivalrous and excludable – for example, more localised, specialised and heterogeneous defence methods specific to particular customers. The common fear concerning such methods of defence is that they will never be able to match the might and power of a foreign state – how can such scattered methods and apparent disorganisation provide any meaningful kind of protection? This fear is soon resolved by the realisation of several important points. First, weapons of enormous firepower – such as nuclear weapons – have only been developed by states because other states have done so. Nuclear weapons are not defensive weapons at all but, rather, weapons of mutually assured destruction. In particular, aggressors are usually not interested in reducing foreign territories to worthless rubble – they have their eyes on the economic resources that are available for exploitation within that territory. Indeed, a significant motivation for the US’s foreign aggression today is the control of resources in the Middle East (especially oil), camouflaged by an ideological veneer. If a stateless society was to abandon nuclear and other large, destructive weapons this would lessen the justification for foreign states spending their resources on them. This goes hand in hand with the second consideration which is that if, as we stated above, the state’s purpose in providing national defence is to protect its territorial integrity (and this is justified by the claim that it protects the persons and property of its citizens from invasion by foreign states), then if a particular foreign society is anarchical and has only scattered and allegedly ineffective private defence methods, what offensive threat does this pose to either the state or its citizens? Not only would the state have little internal impetus to maintain heavy defence spending but any attempt to cajole the citizenry to pay for it would be much harder as the state will lack the ability to construct a bogeyman. The so-called “War on Terror” and the threat of Islamic extremism does, of course, seem to negate this thesis as defence spending is ratcheted up against sub-state and not state actors. But there is a strong case to be argued that most of the threat from terrorism is as a result of the West’s own belligerence – in other words, terrorism is a defensive response rather than an offensive threat. Indeed, there will always be a handful of extremists, fundamentalists and radical nutcases in any society whether its statist, anarchist or whatever. What gives their ideas traction, however, and builds them up into a significant threat is that they become creditable in the eyes of other people – credit that the West seems all too willing to hand on a silver platter. In any case it is arguable that although the difficulty of eradicating terrorists permits the west to perpetuate a bogeyman, the “War on Terror” is becoming a harder sell as it seems as though any widespread, offensive capability of terrorists is limited. This leads to the third consideration which is that, while private defence may appear to be a hopeless offensive force, its effectives as a strictly defensive force comes not from its firepower which, collectively, may well fall short of that possessed by a state, but, rather, from the very fact that it is scattered and heterogenous. It is far easier for a foreign invader to take aim at a central command structure that possesses one train of thought, one or a few strategies, one chain of supply, and whose soldiers have all been trained in the same way and possess the same weapons. As the difficulty in combating guerrilla warfare can attest, it is far more difficult to overcome hundreds or thousands of localised strategies, different training, uncertain weaponry, and surprises round every corner. This effectiveness of private defence would be magnified if the entire economy is also decentralised. In modern states, entire communications and financial networks are centralised so that an invader only has to target the central hub in order to bring the entire country to its knees. How effective would it be, for example, for a foreign invader to knock out a country’s centralised banking system? Where all such services are provided privately, however, with no hierarchy of control springing from a common root, a single attack by the foreign invader is now multiplied into tens or even hundreds of separate attacks to take control of each and every individual, private network. The loss of a part of the banking industry to an aggressor would not necessarily cause the rest of the country to grind to a halt with the only option to yield to the invader’s might.

Just Wars

In spite of our negative conclusions concerning national defence, is it possible that there are any wars can be described as “just” and if what are the requirements for such justice?

It appears to be undisputed in the mainstream that World War II provides the hallmarks of a just war. Here there was a very belligerent and aggressive dictatorship that invaded foreign territories over which it had little (if any) claim, subjected their populations to extermination or slave labour and otherwise imposing upon them its odious method of government. Surely it was just for the allies to go to war against such a threat? Without having to examine the details of World War II specifically, we can see that the main problem with this line of thinking in the abstract is that it considers only states as the relevant players. The individuals within each state are practically ignored or are aggregated into collective wholes. The only relevant units in the analysis are whole countries and some countries are aggressive and nasty whereas others are peace-loving pacifists. If this was true and individual countries were individual people then World War II may come close to being a just war (although, as we shall see below, it would probably even fail if we made this assumption). However, all defensive actions of a state rely, for their funding, upon the taxation of individual citizens – the forced confiscation of their private property. This in and of itself is a rank injustice. What if the individual citizens do not want the money that they have earned legitimately and the government has not to pay for a war? They have had the very thing that national defence is supposed to protect – their private property – stolen from them. All state wars funded by taxation are, therefore, per se unjust, and this fact is true regardless of the nobility of the cause. Tax dollars can be spend on a multitude of good and wonderful things – schools, hospitals, roads, etc. – but this does not change the fact that the people forced to fund them would have preferred to have spent their money on something else. Hand in hand with this goes the possibility of conscription – the enslavement of the population into defending the country with their bodies as well as their wallets – and all of the other liberties that are suspended in war time, with the entire economy geared towards the war effort, as was the case in World War II. Moreover, what are we to make of the mass bombing of civilians, intentional or otherwise? The argument over who killed civilians first is irrelevant – the fact that it was perpetrated willingly by both sides indicates that they are both as bad as each other. And it was the allies who were responsible for what may be the worst of these atrocities – the incineration of tens of thousands of people at Hiroshima and Nagasaki. If a person robs me in the street am I entitled to fire a gun indiscriminately in his direction, killing tens of innocents going about their own business in order to apprehend the assailant? Am I entitled to state that my action was just as it stopped the evil thief and that everyone else who is now lying in pools of blood was just “collateral damage”? I would, quite, rightly be arrested and tried for murder. Such actions are no different in kind from civilian deaths during state warmongering. It also emphasises how little disregard states have for their populations when they are under threat – the persons and property of the individual people are not there to be protected but to be readily consumed or treated as cannon fodder, a wall of defence to protect the state.

Not only does all of this demonstrate the injustice of state perpetrated wars, but it highlights the fact that any consideration of history in terms of whole states, countries and nations will never be able to make an incisive ethical justification or criticism of past events. Although some may be worse than others, the basic truth is that all states are inherently unjust, resting upon a crumbling foundation of illegitimacy. Therefore it is impossible to categorise a war as just through such an approach. When we look at the players in World War II specifically it is difficult to see much of a distinct difference at all. The British were responsible for the imposition of the largest empire in human history. How was this much different from the German conquest of Eastern Europe? Germany’s pre-war attitude towards Britain and its empire was to regard the latter as a kindred, Aryan spirit and a model of ruthless empire-building to be followed and admired. Britain and the United States used concentration camps decades before the Nazis evolved them into death camps – and need we even mention the Russian gulags? Indeed the communist dictatorship of the Soviet Union, with its brutal political repression, does not have much to distinguish it from Nazi Germany – particularly if you were to be an unfortunate victim of one of these regimes. The Soviets had already completed much of their “Great Purge” of hundreds of thousands (at least) before German soldiers ever set foot on its soil. Further, such lack of ideological distinction between the state players in World War II reveals itself through the continuous switching of allegiances both before and after the war and the consequences of such switches. The Molotov-Ribbentrop Pact of 1939 initially sealed Germany and the USSR as allies, secretly carving up Eastern Europe between them. Indeed, the entire trigger of World War II – the German invasion of Poland – was matched by Stalin’s own invasion of that country only a few weeks later. Germany then invaded Russia in June 1941 and Russia became allied to the British and, later, the US. After the War, of course, the former friends fell out and the Cold War endured for another four decades. And perhaps the most sorry tale is the fact that having been “rescued” from Nazi oppression the whole of Eastern Europe – at the mere of stroke of a pen – was consigned to Soviet oppression. For the populations of Eastern Europe how different from being ruled by the Nazis was being ruled by the Soviets? Indeed the attempted justification of World War II and the emphasis of the horrors of Nazi Germany has conveniently overshadowed the atrocities of the post-war communist dictatorships in Eastern Europe. Overall, however, it is hard to see how such outcomes could result if there were genuine, rigorous ideological differences between the players in World War II.

What then is the criteria for a just war? In the first place we must dispense with the notion of “war” itself which is a term that applies to states. In a libertarian world, in which there are only individuals and groups of individuals co-operating voluntarily, there would be no “wars” in the sense in which we understand them. Therefore, the justification for any warfare-type action is exactly the same as the justification for any violent action between individuals in a libertarian society. We can list the criteria quite simply as we did in a previous essay, The Ethics of Interventionism. To relate these to war specifically the equivalent war-faring terminology has been inserted:

  • No person (“country”) has the right to initiate violence (“offensive action” or “invasion”) against any other person (“country”) in any circumstance;
  • Where a person is the victim of aggression (“invasion”) he has the right to defend himself;
  • Where a person attempts to defend himself he has no right to initiate violence against innocents (“civilians”) during the act of doing so, including their enforced participation (“conscription”) and causing “collateral damage”;
  • Where a person attempts to defend himself other people have no right to initiate violence against him in order to stop him from doing so (“neutrality”);
  • A person has the right to solicit, contract with or otherwise co-operate with third parties (“allies”) in ensuring his defence;
  • Third parties (“allies”), likewise, have the right to provide their funds and resources towards defence, either through a negotiated contract (“treaty”) or voluntarily;
  • Third parties providing defence services have no right to initiate force against innocents during the act of doing so; this includes forcing others to contribute towards the same and causing “collateral damage”;
  • Where a third party provides defence services it not may be forcibly stopped (“blockaded”) from doing so by others;
  • Whether the injured party or a third party should or should not act to defend the former against an act of aggression, or whether such an act of defence is a “good” or “bad” thing by some other moral standard may be debated; however, the conclusion may not be enforced violently on any party that is not committing an act of aggression.

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Libertarian Law and Legal Systems Part Four – Wrongs

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The fourth part of our survey of libertarian law and legal systems will explore causative events of legal liability arising from wrongs – that is a breach of some obligation owed by one legal person to another without the necessity of a pre-existing relationship such as a contract.

There are two issues that demarcate the approach of a libertarian legal system towards wrongs as opposed to that of a contemporary legal system. First is the definition of a wrong and second is the standard of liability – that is, at which point the defendant becomes legally liable for a wrong.

Libertarian Definition of a “Wrong”

In contemporary legal systems, a wrong is some sort of act on the part of an individual that is viewed as being subject to legal sanction. Unfortunately, we have to start off with such a vague tautology as, looking at the variety of acts that are subject to legal regulation, this is about as precise as we can get. In many cases, of course, the wrong will be some form of harm caused by one individual to another which serves as the causative event to generate a legal response. “Harm” is very broadly defined and can include violent and physical inflictions such as murder and serious bodily injury, or damage and destruction to property, all the way to more ethereal harms that may include nothing more than speaking one’s mind such as “defamation” and causing “offence”. However, events currently classified as legal wrongs needn’t have a victim at all and the act may either be wholly unilateral or take place between consenting individuals. As an example of the former we can cite nearly all offences related to drug possession and dealing, and of the latter the criminalisation of certain sexual practices owing either to their nature or to the age of one of the participants. Basically, it is no exaggeration to admit that a wrong, legally defined, in our contemporary, statist legal systems means nothing more than some act that the ruling government or legislature doesn’t like and wishes to outlaw, to the extent that even quite innocuous behaviour may find itself being subjected not only to legal regulation but to criminal sanction.

As we outlined in part one, no legal liability is generated in a libertarian legal order unless the wrong, or the “harm”, consists of a physical invasion of the person or property of another – in other words, only those actions that violate the non-aggression principle are subject to legal regulation. Actions falling short of this violation are left untouched by the law and however unpleasant, unkind or distressing these may be one cannot use the force of law (i.e. legitimate physical force) to repel them1. A fortiori, there can be no legal wrong where the act involved has no victim, no other individual whose person or property has been invaded. Anything you do with your own person and property is no business of the law’s, however immoral or repugnant it might otherwise be.

There are certain wrongs that would appear to cause great harm (or have the potential to do so) but do not appear to be invading anyone else’s property. We can cite littering, driving under the influence of alcohol or drugs, and shouting “fire” in a crowded space as examples. The victimless aspect of these acts, however, is caused by the fact that they take place on public property that is owned by no identifiable individual. In a libertarian world however, where all property is privately owned, the property owner would demand standards of conduct (i.e. through contract if you are, for example, paying to drive on a road) and breaches of these standards would then be invasions of the property that could be subject to legal sanction. Indeed, as we saw in part three, contract is a method of preventing and apportioning responsibility for aggression where there is a pre-existing relationship between the parties.

Once again we will not attempt to justify here the basis of self-ownership and private property upon which legal regulation in a libertarian world rests; rather we will merely assume it to be true and examine its consequences for a legal order.

Standard of Liability

The determination of the standard of liability – the extent to which a defendant would be held legally liable for his actions – is a difficult question. The simplest approach is to view all physical incursions into the person and property of another individual as existing on a scale – the least violent or aggressive actions on one end with the most – such as murder and rape – on the other. Defendants would simply be liable according to the level of harm that they caused. If you cause a bruise, you are liable for a bruise. If you kill someone you are liable for a death. However, such a simple classification overlooks the fact that the same outcome to the victim – death, for example – can result from a variety of incidents for which the defendant may be responsible. It may be anything from a deliberately and coldly calculated murder perpetrated by an evil and inhuman serial killer all the way down to an unfortunate accident that the defendant, while responsible, regrets bitterly and would never have dreamed of doing. Such accidents can result from not only the most innocuous of behaviour but also from an innocent moment of absent-mindedness, a weakness which is extant in all humans. It is not likely that libertarian legal systems will categorise these two defendants in the same way. The first person is clearly a murderer whereas to apply this label to the second person would appear absurd. To subject these two individuals to the same standard of liability would not only be unjust but would also cause the legal system to fail to distinguish between those individuals who are (or otherwise have been) a deliberately engineered threat to other individuals from those who are not.

One solution to this problem is to recognise the difference at the remedy stage, so that once liability is established then the remedy can vary appropriate to the individual act of aggression2. Clearly this would be logical when considering the degree of aggression caused – a person who caused a scratch wouldn’t be liable for the same degree of compensation (or whatever remedy) as a person who caused a death. Yet when the outcome to the victim is the same – death, for instance – but the methods or motives of the defendant have been different, such an approach causes the confused situation where you have different responses to the same causative event. We do not, in our contemporary legal systems, label those who cause accidents “murderers” and then simply apply a lesser standard of remedy. Rather the murderers and the manslaughterers incur liability on different grounds from those as those who caused accidents; different remedies then flow from the differing grounds of liability. In part one, we stated that the purpose of legal rules and norms is to broadcast, publically, the rights and obligations of each and every person so that conflicts can be avoided, or otherwise resolved. As “consumers” of the legal system, people will seek the services of jurisdictions where these demarcations are at their most clear so that they can carry on with their lives free from the aggression of others and free from aggressing against anyone else. In a similar vein people are likely to require the legal system to accurately and specifically categorise those who do or at one time did pose a deliberately engineered threat to the person and property of others and those who do not. A prospective employer, for instance, might wish to think twice before hiring you if you deliberately killed someone, whereas if you were the unfortunate cause of a road traffic accident in which a person died then he may have some interest in knowing this but it may not make much difference to your chances of employment. Labelling all of those who cause death “murderers” (or, if we were to go the other way, just “tortfeasors”) would banish the benefits to be gained from this categorisation. One objection to this might be that such a classification is very broad and there will be more detailed considerations to be accounted for within each category – within the category of murderers, for example, will be cold blooded and unrepentant serial killers as well as those who acted in moments of passion and bitterly regret what they did. Shouldn’t these possibilities be recognised too? The answer to this is that the law is qualified only to investigate what you have done and not what you might do; it is the purpose of the law to state that you deliberately murdered someone or that you caused an accident. The law cannot say that you might go on to commit murder or cause an accident in the future. There will be extra-legal standards that might determine if a convicted murderer is still a threat to the public. A prospective employer might, for example, require a psychological test or some sort of guarantee from a sponsor or insurer before they hire the convicted individual. However, based upon the approach of our contemporary legal systems and the likely requirements of those seeking justice, there is an arguable case that a libertarian legal system would still categorise the past acts of aggressors into crimes and torts, with the individuals classified as criminals and tortfeasors respectively, if anything because this is what people, the “consumers” of justice, are used to. We must, however, remind ourselves that these are only suggestions as to how a libertarian legal system might operate. Everything we are stating here is only a speculation or projection of how jurisdictions might respond to the considerations they face in a libertarian way. There is absolutely no reason to suggest that some other way would not be more appropriate or would not be more likely to emerge in a libertarian society. Anyhow, the upshot of all of this is that there is likely to be something more, some second aspect in addition to the simple results of the act of the defendant in order to determine the standard of that defendant’s liability.

This second element appears to be the mindset of the individual defendant – what was in his mind at the time that the act of aggression occurred. Did he intend to cause the act of aggression? Did he intend the act of aggression and ended up committing a larger act of aggression (murder in the course of a felony; or simply causing more damage than intended such as death during an assault); or was it simply an accident caused by negligence or absent-mindedness? The broad classification of wrongs by our contemporary legal systems into criminal liability (crimes) and civil liability (torts) more or less reflects this. Crimes normally require a standard of criminal intent (“mens rea”), a higher standard of proof (beyond a reasonable doubt) and what is viewed as a harsher remedy – usually imprisonment, but also, in some jurisdictions, capital or corporal punishment for those at the more serious end of the scale, and fines for those at the less serious. Civil wrongs, or torts, require no such intent, have a lower standard of proof (balance of probabilities) and the remedy is normally restricted to payment of compensation. By the far the most dominant area of civil liability in English law today is the tort of negligence, negligence being a mindset far below deliberate intent to cause aggression.

While this goes some way to resolving our problem the risk now incurred is that of deferring too much to the conduct of the defendant and not to the actual harm that was caused to the victim – that legal systems will only consider how the defendant behaved and hold him responsible accordingly. Certain, limited circumstances such as duress or automation (to the extent that the defendant could not choose his action) may serve to partially or completely absolve the defendant from any liability. That aside, however, while the specific content of the freely chosen behaviour of soundly sane adults should certainly determine the extent of liability, it should not absolve such a person from any liability whatsoever. While it might seem “unfair” to hold someone liable for an unintended, remote or unlikely consequence of his action, it is equally “unfair” to leave the victim, who had no involvement at all – either intentional or accidental – in bringing about the state of affairs, to bear his injury or loss uncompensated.

All of this we will now explore in more detail by proposing a likely approach of a libertarian legal system to the question of liability, an approach that we suggest will consist of three stages:

  • Can liability be established? In other words, did the defendant initiate an action that was the cause of the physical invasion of the person or property of another?
  • If so, what is the extent of the liability? In other words, what was the result of the invasion to the victim?
  • What is the nature of liability? I.e., did the defendant actively intend the aggressive behaviour or was it a mere accident?

Establishing Liability

It is submitted that the establishment of liability in a libertarian legal system is likely to rest squarely on the simple occurrence of aggression – whether an individual initiated an action that caused the physical interference with the person or property of another individual. Once the fact of aggression is established the question of law of whether the defendant is liable will always be in the affirmative. In other words, liability is strict and is restricted solely to the question of whose actions initiated an invasion, physically, of the person or property of another.

The courts will have to determine precisely which actions are and are not aggressive. As we mentioned in part one there are plenty of innocuous physical actions – light beams, radio waves, sound waves, even fumes and odours – which, under a certain level of intensity would not ordinarily be categorised as invasive or aggressive. It must be remembered that physical invasions only give rise to social rules so long as they create a conflict and conflicts exist only in the minds of the participating individuals. They are not determined by a scientific analysis of colliding matter3. People could invade and physically interfere with each other as much as they liked if they had no problem with it. It is only because such an interference prevents one of the parties from pursuing the fulfilment of his ends that rights exist come into being and their enforcement is sought. The test in more difficult or threshold cases, therefore, is likely to be whether the invasive action prevented the plaintiff from pursuing his ends with the property that was subject to the invasion. The court may need to interpret the actions of the victim in regard to the invasion to determine this. Did he, for example, have to interrupt his operations? Did he appeal to the defendant for a cessation of the aggressive act? The courts are likely develop rules in order to accomplish this. They may, say, for example, that after a certain period of time a person carrying out a physically invasive act without any complaint gains an easement title and is permitted to continue the act. Nevertheless the courts would have to look at all the facts in each case in order to determine whether the plaintiff’s action is genuine and it is not likely that any one particular factor will override all others in every single case.

Assuming that there is an actionable physical act of invasion the initiation of the act must be implemented by an intervening act of will of another legal person. Acts initiated solely by the laws of physics are not aggressive actions but merely the acts of nature. While in most cases the intervention of will is likely to be contemporaneous with the act of aggression – A punches B; C stabs D, and so on – there is no requirement for it to be so. I may accidentally leave the hand brake off on my car and half an hour later the car rolls into someone; I may build a house that many years later collapses and falls onto another person. The extent of the liability of the owner of invading property in these types of case is easily misunderstood. It is true that, in such cases, the owner of the invading good may be prima facie liable for its physical invasion of another person or the latter’s property. However, this fact owes itself to procedural or investigative purposes and nothing about ownership of an invading object per se attracts legal liability. Given that all ownership derives from acts of deliberate, physical homesteading which transform an object from one good into another (in other words, any dangerous condition of owned goods is most likely the result of the intervention of will of the owner), and that any current owner as a voluntary successor in title has nearly always assumed full responsibility for this condition, it makes sense to look to the owner of the invading object first in order to find the culprit. Moreover, this owner is the most likely person to have used it last and to have caused the invasion. If your knife is found at the scene of a murder then it is obvious that the police will look to you first – you, as the the knife’s owner, are the “prime suspect”, if you like. However, where there is clearly a further intervention of will by another individual then it is this latter individual who becomes liable and whoever owns the invading object is irrelevant. For example, A uses B’s knife to stab C. Neither A nor anything that belongs to him may ever actually touch C but it was the intervention of his will, beginning with his own body, that initiated the act of aggression, not that of B. B’s knife was merely the intermediate tool that was used to fulfil the act and simply because B owned the knife does not mean that he should be liable for the stabbing, barring some special circumstance4. In cases where someone stabs you with your own knife then the aggression has already began when the person assumes physical control of your knife. In short, your are liable for what you do, not for which you own, and you are only liable for what you own to the extent that you have done something with it.

This brings us to the matter of causation and the question of whether or not the willful initiation of an act by the defendant caused a physical invasion of the person or property of another. The concept of causation in the law is a thoroughly confused and problematic area in contemporary legal systems. Courts leap into examining causation from the point of view of the harm that resulted to the victim and whether some act, omission, or whatever of the defendant was the cause of the actual harm that resulted; the question of what it is about the defendant and what he actually did is ignored. Possessing no rationale as to what should generate legal liability, their factual analyses of cause in the first instance holds everything to be an operative cause of what followed. If we are talking about injuries from a car accident, then there are a variety of causes – the fact that the victim was driving on the road at the time; the building of the road in the first place; the weather; the light at the time of day. Factually speaking the creation of the Earth is a cause of all accidents. They therefore have to apply various other mechanisms, such as “proximate cause” or “remoteness of damage” in order to narrow to the “relevant” cause and the extent of the damage for which the defendant will be liable. Needless to say vague and malleable concepts such as what is “reasonable” to hold the defendant liable for wade into the fray, particularly when we consider situations where the loss or injury caused to the victim is grossly disproportionate to the initiating action. In other words, like a butterfly flapping its wings and causing a hurricane, the damage resulting is more widespread or remote than would normally be the case, sometimes by setting off a chain of events – poking someone and inducing a fatal heart attack; causing a spark that initiates a widespread fire; knocking over an object that falls into a wall, that collapses onto a crowd; and so on. Is it not unfair to hold someone liable for the full extent of the damage when that damage has been completely out of proportion to anything imaginable when you consider the original act? Legal concepts such as “remoteness of damage” serve, in some cases, to limit your liability for remote but quite serious damage that initiates with your action so that the victim is left uncompensated. This approach of contemporary legal systems towards causation, through a mixture of factual and policy applications, therefore results in everything and then, suddenly, nothing being blamed for the damage to the victim.

Our suggestion here is that the correct approach to the question of a causal connection between the willful act of the defendant and the physical invasion of the victim should be considered first, leaving the question of the effects of the physical invasion (the resulting harm) to be considered in the second stage. Overall, this makes it much clearer to connect the will of the defendant to the resulting harm.

Strictly speaking, when considering causation, we must recognise that there is no such thing as a watertight “factual” analysis of what caused what. Factual determinations of causation result only from controlled experiments where we have the ability to repeat the situation and hold all variables that are not under consideration constant. Hence, by altering the input of the variable being tested, we can reasonably conclude that any change in output is caused by the alteration of that input. Such a method is not possible when examining the facts of legal cases. The aggressive act has happened and the victim is left with the harm. We do not have the luxury of undoing it, recreating the situation and seeing what results if we vary a single factor of input. All enquiries of causation, therefore, require hypothetical projections of what would have resulted had the circumstances varied. We have already seen, however, that courts have to make objective legal determinations from untestable evidence when determining the intentions of the parties and whether behaviour was aggressive. Just as intention is a fundamental category of human action to which we can all relate, so too is the notion of cause, for all actions are made with the knowledge or belief that an action will cause a particular effect. Courts will have to use this understanding to make objective determinations as to which actions result in which events to the satisfaction of the required standard of proof.

The likely libertarian approach will make this relatively straightforward. What we are interested in is the willful intervention of the defendant. As all such interventions result in concrete, physical action emanating from the defendant’s body, the question is merely one of tracing the physical outcome from the defendant’s body to the person or property of the victim. All cases can be classified into broadly three categories:

  • The body of A physically invades the person or property of B – e.g. A hits B;
  • The body of A physically moves an object that invades the person or property of B – e.g. A shoots a gun at B; A uses a knife to stab B;
  • The body of A places an object in a position which later invades the person or property of B – e.g. A leaves the hand brake off on his car; the car rolls into the person or property of B5.

By starting from the position of the act of the defendant – the only act in which we are interested in in order to generate liability – and seeing if it arrives at the result of physical invasion of the victim then the enquiry of causation is greatly simplified. In categories one and two this will be straightforward as the motion of the defendant’s body directly and contemporaneously results in physical invasion of the victim. The third category, however, is more problematic as it may require the further intervention of acts of nature in order to complete the physical invasion. Gravity may largely determine where my car goes if I leave its hand brake off; the flow of the river will carry my boat downstream if its moorings snap; a chemical reaction may cause an object created by me to explode under the right circumstances. At the very least the courts are unlikely to hold that such interventions of the laws of physics have any bearing upon the defendant’s liability where they are part of the natural and expected course of events. A car left with the hand brake off can be expected to roll down hill; a boat with a snapped mooring can be expected to be carried downstream. Where the intervention of nature is extreme or unexpected – e.g., a lightning strike blows up of part of a house and the debris strikes a passer by – the courts may or may not hold the owner of the house liable. If they do, however, there is always the likelihood that the defendant’s insurer will cover the cost of compensation to the victim, something we shall explore in more detail later. Completely new acts of intervention by a third party may result in either the defendant being absolved from liability completely – i.e. his act did not result in the physical invasion of the victim – or he may have to share liability with the third party, depending upon the circumstances. For example, a third party picking up my knife and using it to stab someone would not cause me to incur liability; however, if my boat snapped from its moorings and then a third party pushed it into the path of another boat the courts may find both parties liable for the aggressive act to the owner of the latter boat.

As we indicated, once the fact of aggression is established then liability is applied strictly. The effect of this approach is to hold an individual person wholly responsible for the voluntary actions of his body and those of his property. In other words, in each and every person’s action the risk that the said action may result in the invasion or aggression of another is borne by the initiator of the action. It is therefore the responsibility for each and every individual to ensure that his actions do not result in physical invasion. In most cases this will be straightforward to accomplish. We generally have a high degree of control over whether our actions will in fact invade another individual. If I walk down the street it is not difficult to avoid bumping into other people; if I drive my car I don’t have to break into a sweat to avoid ramming it into other cars. We can usually go about our daily lives without even having to consciously avoid physical invasion of other people. As each person possesses this degree of control we know from economics that placing the responsibility of aggression on its initiator will result in lower acts of aggression as people seek to avoid its cost. There will simply be fewer acts of aggression with which the courts have to deal. The difficult question, however, arises from situations where aggression results from actions which are innocuous, accidental, arise from innocent and typical moments of absent-mindedness, or simply, from the point of view of the initiator, amount to little more than going about his daily life; for example, knocking over your cup of coffee and scalding someone; or a moment of distraction that causes you to run over a pedestrian; kicking a football that accidentally goes astray. The precise context of such occurrences may also matter. In emergencies we are much more likely to rush and to avoid taking care of our actions because there is a pressing need at stake. In all of these cases does it not seem unfair to hold the defendant liable for something that was initiated out of a moment of human weakness, common to us all, and/or out of simple common behaviour which, but for the invasion of the victim’s property, would have been allowable? And is it not unfair to hold someone liable for his actions when he is, with all good intention, responding to a pressing need such as in an emergency?

Contemporary legal systems have developed mechanisms and doctrines to attempt to tackle this problem. In the English tort of negligence, for example, one of these is the so-called “duty of care” which attempts to narrow the field of actions where negligence gives rise to liability. In other words, there will be some situations in which you can be as negligent as you want yet you will not be held liable as you are said to owe no “duty of care”. Indeed even negligence itself is a vague and arbitrary concept, permitting the courts to consider practically every aspect of the situation while possessing no rationale as to which should be given weight in order to determine whether the defendant was, in fact, negligent. The problem with all of this is that however innocent or well-intentioned your actions, the victim – the one person who definitely did not have any input at all into the action – is still left standing with the loss. With the acquittal of the defendant forgotten is the man with the broken leg, the widow with a dead husband, or the child that is paralysed. To absolve the defendant does not make these losses disappear; rather it simply shifts them from the defendant to the plaintiff. In spite (or perhaps because) of some of the complex formulae and procedures that have developed in some of the case law, legal mechanisms such as the duty of care appear to be based little more on questions of whether the defendant behaved “reasonably” in his conduct or whether it is “reasonable” for him to be held liable for the full extent of the damage caused by his initial act. They therefore amount to little more than political vehicles as to who should bear the risk of loss from invasive actions that you initiate. The more restricted the liability upon you, the aggressor, the more the burden of risk shifts to the victim (or potential victims). Rather than watching whether our own actions will initiate aggression we will forever be on the lookout to protect ourselves from everyone else’s.

While it might seem unfair to hold a defendant liable for his “reasonable” behaviour, the fact of the matter is that we all bear the risk of initiating aggression through our innocuous actions or “reasonable” actions. Life is inherently risky and the risk of invading the person and property of others is a risk inherent in the existence of society, just as we bear the risk of falling ill or having our house burned down by fire. The libertarian does not expect legal methods – violence and force – to solve problems such as hunger, illness etc. and nor should it be used to mitigate risk. Rather we believe in the free market to do these things. Where it is no longer possible to mitigate risk personally the insurance industry steps in to pool risk across many individuals. Thus, in the unlikely and unfortunate event that you cause an aggressive action, you may be protected from having to compensate the victim by your insurance provider. But a libertarian legal system will not absolve you from the fact of liability simply based upon the reasonableness or normalcy of your conduct. This is highlighted more starkly in the situation where a person is put in the position of having to damage at least some property. For example, let’s say a car is hurtling towards you and you have to deflect it into either property A or property B. Property A costs £500 to repair, property B £300. If you own both properties then your “reasonable” behaviour would be to deflect the car into the property which was cheapest for you to repair – property B. You would then have to fork out for the repairs. If, however, property B was owned by someone else then your choice is now between damaging your own property A at a cost of £500 or damaging property B and having to provide compensation to the owner at the cost of £300. Again, your “reasonable” behaviour would be to save property A and damage property B. In both situations your behaviour is reasonable but it would be absurd to suggest that in the second scenario you should not have to pay simply because the damaged property is owned by someone else.

Finally, it should be clear that where the physical invasion is caused solely by the laws of physics then the invasion should be regarded as an act of nature and the victim will have to bear the full cost, or otherwise make insurance provisions in order to do so.

The Extent of Liability

Once the fact of physical aggression or invasion is established, the second question concerns the extent of the liability incurred. In other words, what harm or loss to the victim did the act of aggression cause? The defendant is to be held fully liable for the loss that his aggression caused. Once more the effect of this is to hold an individual person wholly responsible for not only the voluntary actions of his body and those of his property but also for their effects. In other words, just as you bear the risk of invading others through your actions, so too do you bear the risk of what results from that invasion. Again, just as the fact of aggression itself is, for the most, part, easily controllable, so too will any harm that is caused likely to be in proportion to the extent of the action. If I bump into someone accidentally he may come away with a slight bruise or nothing at all; if, on the other hand, I punch him in the face he is likely to end up with a broken jaw; and if I stab him twelve times he is likely to die. Normally, therefore, each individual can control not only his actions in order to prevent aggression in the first place but also the precise level of harm that his actions will cause. As we mentioned earlier, problems arise when your actions – invasive as they may be – produce outcomes that appear disproportionately severe compared to the action itself. This includes situations where the victim has an unusual or peculiar sensitivity to invasive actions – such as a weak heart that could be arrested by the most innocuous of aggressive acts. Is it not unfair to hold the defendant liable for such wild and unforeseeable harm that result from his act?

Yet precisely the same arguments that apply to question of liability in the first place apply also to its extent. However remote, unlikely or unforeseeable the results of your actions simply dismissing them does not make the losses disappear but merely shifts their burden to the victim, the one person who had no involvement. While it is within the economic interests of potential victims to protect themselves from the effects of aggression – particularly if they possess an unusual sensitivity – there can be no legal compulsion for them to do so and defendants should take their victims as they find them, warts and all6. Once again, therefore, every single person bears the risk of causing widespread damage even though his actions may demonstrate no or a miniscule degree of fault in relation to that damage. Where it is no longer possible for the defendant to mitigate the risk of causing widespread damage through controlling his personal conduct then he can contract with an insurance provider to spread this risk across many potential tortfeasors – just as he can so contract to spread the risk of aggressive behaviour in the first place.

Once again the question of causation arises and it is here that we consider the second part of this area. Having established that the act of the defendant caused a physical invasion to the victim’s person or property we then have to establish whether the invasive act caused the loss or damage to the victim. In most cases this will be extremely clear as the invasive act will be intimately and undeniably bound with the loss or damage in the same physical space. A shoots B and B bleeds to death; A’s car rams into B’s house and the house collapses, etc. In certain questionable cases it may be necessary for the courts to develop standards – for example, expert medical testimony from three independent sources – that will be sufficient in order to determine cause. The difficult area is likely to be in situations where there are multiple, independent causes sufficient to result in the damage and it is otherwise impossible to tell precisely which was the actual cause. For example, two shooters independently fire their guns at an individual and two bullet’s lodge in the victim’s body and he dies. Either bullet was sufficient to cause the death of the victim but it is not know which one. In the Fairchild case7 five employers of the victim exposed him to asbestos at various stages of his career; only one asbestos fibre was required to cause the illness that subsequently resulted in the victim’s death but it was impossible to determine precisely which fibre he inhaled was the cause. What should the courts do in these cases? It is likely that the courts will hold all of the sufficient causes proportionately liable, the exact proportions to be determined by the individual cases (such was the outcome in Fairchild). All tortfeasors will therefore share the burden of compensation at the remedy stage. Where one of the sufficient causes was an act of nature then the total compensation recoverable by the victim will be reduced accordingly. One limitation for the victim, however, is that liability between the defendants should be several and not joint unless the independent causes were actively co-operating. In the Fairchild cases, therefore, if one of the defendants was no longer alive or recovery was otherwise unavailable then the plaintiff could not recover that defendant’s portion from the other defendants. Victims always bear the risk that their tortfeasor may no longer be able to furnish a remedy for the harm done; this applies in cases of multiple independent as well as single tortfeasors. The contrary would hold that, if four of the Fairchild defendants were no longer alive yet one was then the victim would be able to burden that defendant with the entirety of the loss in spite of the fact that causation of the harm by that single defendant has not been established to the relevant standard of proof. This was the outcome of Barker v Corus8, which was, unfortunately, reversed by legislation, at least to the extent that it applies to asbestos. What we have suggested here is an equitable compromise between three factors:

  • Physical aggression being sufficient to generate liability;
  • The harm done to the plaintiff through no fault of his own;
  • The lack of a strict, causal relationship to the satisfaction of the required standard of proof between those two factors.

If, however, two tortfeasors are actively co-operating then it is likely that the courts will find their liability to be joint and each is liable for the whole. The contrary would permit the deliberate scattering of liability. For example, one could hire tens of shooters to kill a person at the same time (increasing the likelihood of death) yet burdening the plaintiff with the cost of apprehending and trying all of them in order to gain his full remedy.

Nature of Liablity

Having established the fact of liability and its extent, the third consideration for the court will be to determine the nature of the liability. This centres entirely on the intention of the defendant to commit the act of aggression and the classification of that act into a crime or a tort. It is likely that this categorisation will be extremely broad and will not have to enter detailed examinations of various modes of mind. Rather the sole enquiry is whether the act of aggression was deliberate and intended or was accidental. If it was deliberate then the act was criminal; if it was accidental then the act is tortious or the equivalent of “civil” liability in our contemporary legal systems.

Intention does not necessarily require the motive of causing the specific act of aggression. One might wish to blow up a plane in order to fake an insurance claim. The fact that killing everyone on board was not the purpose of your act would not absolve you from liability for murder as those deaths were the natural consequence of causing the explosion. At the opposite end of the scale some extreme degrees of recklessness may be sufficient to establish criminal intent even though the aggressive act was not sought deliberately by the defendant.

A further likely consideration is whether the actual resulting harm (in addition to the aggression in the first place) was also intended by the defendant. A shoots B and B dies; C pokes D and D dies. Both A and C intended an act of aggression and are both criminally liable but it would be extreme to suggest that C – who probably intended no or little harm at all – should be classified as a murderer just like A. It is likely, therefore, that the court will recognise gradations of liability according to intention of outcome, such as degrees of murder.

The upshot of all of this is that, at the remedial stage, a tortfeasor is likely to have to furnish compensation only and can then go about his life unmolested. A criminal, however, having been identified as a deliberate threat to the person or property of others, is likely to face further sanction, punishment, or rehabilitation before his reintegration into the community. Such considerations are beyond the scope of what we can examine here.

By retaining this classification we do not, in any way, mean to state that “crimes” are offences against the public or against the state, and at no point does the state replace the victim in the prosecutorial process. We are merely suggesting that those who seek justice are likely to demand this distinction between wilful criminal conduct on the one hand and accidental behaviour on the other.

Self-Defence

Under libertarian theory, self-defence is the physical response to an invasive act in order to render that invasive act inert; the physical nature of the response – i.e. violence – is therefore legitimised. How are libertarian legal systems likely to handle this concept?

Let us say that A is the individual invoking self-defence and B is the person alleged to be carrying out an act of aggression against A. In order for self-defence to be validated, there must be an actual, objectively identified initiation of an act of aggression perpetrated by B. The mere possibility or even probability of an act of aggression does not suffice. A’s misinterpretation of B’s behaviour also would not suffice. If B raises his arm to brush his hair and it was objectively clear that this was his intention but A, expecting an imminent strike, shoots B then however reasonable or in good faith A’s misinterpretation of B’s behaviour he would not be allowed to invoke self-defence and A would be held fully liable as an aggressor. If this should be doubted, then consider the position of B; if he is raising his hand to comb his hair and this is the objectively valid interpretation of his action but A goes and shoots him would he (B) be entitled to defend himself from this act and shoot A back? If the answer is yes then A is the aggressor and not the defender. If, on the other hand, B pulled back his fist at A in order to punch him and A shoots him to stop him then B would be the aggressor and A the defender.

The act of aggression must have been initiated – in other words, it must be in the process of occurring. While the physical intervention does not yet have to have occurred, its occurrence must be the imminent result of that which has already occurred. I raise my gun at you ready to shoot would warrant an intervention of self-defence, even though I have not yet shot. In some cases, threatening words may suffice if they can be interpreted objectively as a statement if imminent intent. Fully anticipatory acts of “defence” – i.e. shooting someone before he has a chance to initiate an act of aggression against you – are, however, not warranted. While someone may be very concerned at the presence of a peculiar or sinister individual the lawful response to this is to prepare oneself for an act of defence in the event that an act of aggression is, in fact, initiated. This could include installing extra security devices on one’s property or carrying a personal firearm.

What is the permissible extent of the defensive act? Once again, in our contemporary legal systems, “reasonableness” rules the roost with “reasonable force” being the seemingly operative phrase. However, at least in situations where the aggression is sudden and surprising victims do not have the time to judge the extent of the aggressive act and precisely which response is proportionate. Indeed, any such act – a robbery, a car hurtling towards you, a raised fist – whether deliberate or accidental may either result in the death of the victim or escalate to do so. It is submitted, therefore, that the correct approach is likely to be that any act that the victim deems necessary to bring the invasive act to a close will be a permissible act of self-defence. This may involve killing the invading person or destroying the invading object. What is not permitted is for the act of defence to harm innocent bystanders or for it to continue once the aggressive act has been rendered inert. So someone could not, for example, fire indiscriminately into a crowd in order to stop a robber from running away, nor could one, having shot an intruder, proceed to take an axe and hack him to pieces. These would all be fresh acts of aggression and would themselves be liable to legal sanction.


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Minor revisions and clarifications were made to this essay on January 16th 2018.


1This does not mean to say, of course, that extra­-legal methods cannot be used to discourage “harmful” actions that fall short of a physical invasion.

2This appears to be Rothbard’s approach – see Murray N Rothbard, Law, Property Rights, and Air Pollution, Cato Journal 2, no. 1 (Spring 1982): 55-99, reprinted in Economic Controversies, pp. 367-418, at pp. 409-12; also, The Ethics of Liberty, p. 144.

3Indeed, one of the criticisms of the non-aggression principle – that it would outlaw practically all behaviour that results in innocuous invasions – is based upon this misunderstanding.

4Even if this wasn’t the case though, and if we could, theoretically, hold B liable so that C should sue B and B should sue A we must bear in mind that not only is the purpose of the justice system to enforce rights and obligations with clarity but that also the “production” of justice is itself a costly affair that consumes resources. It is likely therefore that a libertarian system will always take the shortest route and permit C to sue A directly, with B dropping out of the picture (unless B wishes to sue A for the theft of the knife). The same considerations would occur with accidents that involve a chain of property ownership – A bumps into B which causes B to bump into C which causes C to bump into D. D is likely to be able to sue A directly.

5cf. Richard A Epstein, A Theory of Strict Liability, Journal of Legal Studies 2 (January 1973)151-204.

6Some cases have been decided by whether the cost of preventing the invasion is higher for the defendant or for the victim, with the person bearing the lowest expense liable. For example, does a person have an obligation to “fence-in” his cattle to prevent it from wandering onto the property of another or does the latter have the obligation to fence them out? Where the pasturing of livestock was carried out intensively it was cheaper for the owner to fence in than it was for the third party to fence out and the owner was held to be liable. However, where it was extensive then it was less expensive for the third party to fence the animals out and he was held liable for the resulting loss caused by the invasion of the animals. Apart from requiring invalid interpersonal utility comparisons, this approach overlooks the fact that parties arrange their affairs with regards to all of the economic circumstances that they face, including the possibility of having to compensate a victim or litigate a case. For example, a farmer will fence in his cattle if the cost of doing so is less than that of providing compensation to a violated third party; a third party will fence out if the cost of doing so is less than that of litigating a case of invasion. Factored into this will be the likelihood of invasion in the first place and the non-monetary costs – time, for example – that would be involved. It is not the business of libertarian courts to either assess or correct the economic choices of the parties before them – rather they should apply the law according to libertarian principles so that these choices can be made with certainty in the first place. It is true, however, that the customary and conventional context may cause courts to preclude unusual sensitivities from permitting the condemnation of otherwise innocuous or innocent behaviour as aggressive.

7Fairchild v Glenhaven Funeral Services Ltd. [2002] UKHL 22

8[2006] UKHL 20

Exceptionalism

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The current crisis in the Ukraine, where a Western-prompted coup of the pro-Russian government has led to Russian occupation of the Crimean peninsula and “protection” for its naval interests in the Black Sea has highlighted the attitude of the West, and of the United States in particular, to what may be regarded as their “exceptionalism”. Whatever standards other countries and governments are held to, the US believes that it is permitted to deviate from (nay, obliterate) those standards, labelling their own actions with some other, innocuous term while utilising some half-baked moral justification in order to promote its acceptability. What is, for other countries, an illegal invasion of a sovereign state is, when the US does it, an act of “liberation”. When someone else organises a rebellion against a sovereign government it’s a violation of international law; but the US only “spreads democracy”. When other states commit horrendous acts of torture or indiscriminate murder they are “war crimes”; for the US, these are tactics that are necessary in the just and noble “war on terror”. Indeed Washington’s leaders have become so blinded by their sense of exceptionalism that they fail to realise that the case of the Ukraine, more than most others, has drawn stark attention to this unrelenting hypocrisy. Russia’s interests in the Ukraine are far more pressing than any interest that the US has either there or in any of its previous catastrophes such Iraq, Afghanistan, Syria, and wherever else into which it has poked its heavily armed nose. The Crimean population, according to a referendum held on March 16th, is overwhelmingly in favour of not only Russian intervention but of outright annexation of the region by Russia. Furthermore, Russia’s response, thus far at least, has not been to steam roller in, guns blazing, but has, rather, been more measured. So not only is the US protesting Russia’s actions, actions which the US happily takes everywhere around the world – it is doing so while Russia has stronger interests, is heavily supported by the indigenous population, and has taken weaker action than the US has in any of its self-invented skirmishes.

The concept of exceptionalism, however, is not something that is restricted to the US or is somehow born out of the US psyche. Rather, exceptionalism traces its roots to the very heart of how government operates domestically. If people steal from each other, it is called “theft” and is criminalised, yet when government steals it is permitted and is called “taxation”. If a company dominates an industry it is called a “monopoly” and must be broken up; if government does it, it is called “nationalisation” (probably with some other seductive sound bite such as the industry is being run “for the people”). If Bernie Madoff takes cash from customers to pay returns to previous investors, it is called a pyramid scheme and he is locked up; when government does precisely the same thing it is called Social Security. If the mafia forces you to pay tribute in return for security it is called a “protection racket”; when the government forces you to contribute to its armies, navies and air forces it is called “national defence”. Government necessarily conditions its operatives to believe that they are excepted from the common morality to which all other human beings must adhere. It is only because the US is the de facto most powerful government on Earth (although it is encouraging to see Obama’s belligerent efforts coming to nought in both the current crisis and the crisis in Syria) that this exceptionalism becomes magnified onto the international scene.  So in just the same way as government does not have to behave in the same way as its citizens, neither does the most powerful government have to behave like any other government. The US is not alone in this regard and has been preceded by other wealthy and heavily armed states – Ancient Rome, and the British for instance – who, coupled with a hubristic belief that they represent the pinnacle of “civilisation” in an otherwise barbarous world, have ploughed their way over everyone else whom they expect to be held to other standards. Indeed, when a pirate was brought before Alexander the Great and asked to explain his actions, the pirate is believed to have replied that what he, the pirate, was doing, was exactly the same as that which Alexander was doing. The only difference was that Alexander terrorised the seas with a “navy” and was styled an “emperor”, while the pirate did so with a “petty ship” and was thus brandished a “robber”1.

The conquest, therefore, of the exceptionalism of the most powerful nation can only be achieved by eradicating that exceptionalism at home – in domestic government and domestic policies. All human beings, whether they work for the government, the civil service, or are private citizens, must adhere to the same common morality and must be held to the same moral standards. Better, still eradicate government completely and the political caste – together with the divisions it creates between itself and those of us less exalted – will disappear entirely. Only then can we hope for a peaceful world in which all humans are equal before the law – both nationally and internationally.

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1See St Augustine, City of God, Book IV, Chapter 4.

Spying and Security

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The US government’s recent embarrassment over revelations of its surveillance program by Edward Snowden, a former NSA contractor/CIA employee, and their subsequent frustration in trying to apprehend him, has led to all of the usual outcry from libertarians about government spying, invasion of privacy and so on. However, a further interesting question is whether such acts are a necessary part of the deliverance of security. Would, for example, private security agencies have the need to spy on people’s private communications and, if so, how would this be regulated in a free society?

Security, like any other good, is an end that consumes scarce resources and its provision must therefore be valued like any other. Because a state is as an institution that enforces a territorial monopoly of the provision of law, order and defence funded by compulsory levies (taxes), it needs to provide a blanket security service and need never worry about “customers” leaving it for a competing service. As a result it is cut off from any communication, through the profit and loss system, of whether it has correctly allocated resources efficiently to provide for security needs and so it, alone, needs to judge the urgency of a particular security threat. This would not be the case on the free market, however, as private, competing, security agencies would not be able to apportion more resources towards the production of security than its customers were willing to pay for. In times, therefore, of relatively light or transient threats and normal, one-off acts of crime by individuals then security will not be a high priority and intelligence, which is linked almost wholly to such crime would have little purpose as there would simply be no data to gather. Indeed this would normally be the case in a free society. Most “organised” crime consists of the underground provision of peaceful and voluntary services that the government has outlawed and “terrorist” threats are political backlashes against the government. Even if there was the threat of invasion of a free society by, say, a neighbouring state, this would be much harder for that state to accomplish when defence provision is scattered and heterogeneous rather than concentrated and homogenous in the form of the government’s army, navy and air force. The closest you might get to any kind of organisation in crime in a free society is various forms of human trafficking, such as paedophile rings and kidnap for forced labour. It is therefore very unlikely that there would be the need for systematic intelligence gathering in a world free of the state. However, for arguments sake, let’s say that there is a genuinely serious and imminent threat of organised crime which commands a pressing need for intelligence of this threat by a private security agency in order to defend its customers. What could it do?

A security agency could certainly not invade the servers and networks of private providers of communication services. It could, however, negotiate contracts to monitor information that passes over these networks, with the specific nature of such monitoring subject to the corresponding nature of the threat. But the major difference between this and between government intelligence gathering is that it could never be secret and, if it was, it would be unlikely to last for long. From the point of view of the security providers’ customers, in an environment where there is a genuine threat then such monitoring is likely to be a selling point; while it may not be advertised quite as explicitly as “we will read other people’s emails to keep you safe”, if people, on balance, estimate any threat as being worth the while of this kind of action then they will be eager to provide custom to those security services that can offer it. On the other hand, if a threat is deemed not to be quite so serious to the extent that customers either do not care if other people’s communications are monitored or they would actively leave for an alternative provider to avoid it, could a security firm carry on the practice in secret? The answer is almost certainly no because this would cause the firm to incur costs that customers are not willing to pay for. Hence it would have to raise its prices. Such a firm would therefore see its customer base shrink to the advantage of suppliers who do not incur these deadweight costs. The practice would therefore be self-liquidating at the point when threats are no longer deemed to be worthy of the expense of intelligence gathering.

Furthermore, the monitoring of communications would need to have the consent of the customers of telecoms and internet providers. Again, the permissibility of this would be judged by these customers in the light the urgency of a threat. In the absence of such threats providers that do not invade the privacy of communications would receive custom and those that do would not. Moreover, in this environment, people themselves may be unwilling to deal with parties whose communications were not filtered through a monitored channel. But these services would also be tailored to specific regions that may be under threat or levels of monitoring could be targeted at specific groups based on their vulnerability or their propensity to commit an atrocity. There would not be the blanket monitoring of absolutely everybody and the provision of the same service to everybody regardless of who they are and where they are.

Would consent make intelligence gathering useless? Not necessarily. Between themselves, of course, criminals can use channels that are not subject to monitoring. But when the fear of a threat is perceived to be high channels offering absolute privacy would be difficult to come by and it is arguably the case that government is much easier to circumvent than private agencies. However, all criminal organisations must at some point communicate with the outside world (for purposes of supply, for example) and these latter communications would be subject to monitoring. While not perfect, therefore, it would not be impossible to piece together the movements and intentions of organised criminals.

The above is just a basic outline of what might happen in a free society and no doubt many more considerations could be added. But it is worth emphasising again the main point – that most of the need for intelligence gathering is generated by the government’s own avoidable acts and so, why it could conceivably be accomplished in a free society, it would almost certainly be unnecessary. The proper way forward, then, to end the world of spying, surveillance and secrets is to decriminalise victimless crimes and to stop the government from invading and bombing other countries and nurturing blowback. And we have of course assumed above that government is genuinely trying to protect its citizens; of great import also is the very convincing argument that government merely invents and exaggerates bogeymen for the very purpose of intruding into people’s lives and we need to consider the extent to which surveillance is the end rather than the means.

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