Building a Libertarian World

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A difficult and perhaps insufficiently understood question concerning libertarianism is how libertarianism will be brought about in the world as we know it and, moreover, precisely what a libertarian world will look like. How can libertarians expect their theoretical understanding of their philosophy to emerge from this present world of seemingly perennial statism and how will the world be shaped once this libertarian world is accomplished? This essay will bring together a number of thoughts of this topic that have been addressed in previous essays, namely the relationship between libertarianism and wider morality, the nature and origin of law and concepts such as rights, obligations and property, and the importance of decentralisation and the relative size of state institutions, in order to try and create a unified picture of how libertarianism in theory can (or will) become libertarianism in practice.

Let us begin our examination, then, with an outline of libertarian theory and the place of libertarianism amongst wider political and moral theory. Libertarianism as a theory is concerned solely with the legitimacy of the initiation of physical force between rationally acting beings and either themselves or other physical matter of which the world is made (i.e. “resources”). Rationally acting beings are those beings who strive to attain their deliberately chosen ends through the utilisation of means, means that are scarce and can only be devoted to one individual’s end at the expense of everyone else’s. Libertarianism asks the question who may act physically in relation to a given piece of matter and who may not. It answers this question by stating that every rationally acting individual owns the physical matter that comprises his body (“self-ownership”) and all external, physical matter either of which he is the first user or of which he has received in trade voluntarily from a previous, legitimate owner (“property”). A violation of these principles – i.e. the uninvited, physical use of an individual’s person or property by another individual – is deemed to be an aggression, an unjust invasion of that which belongs to somebody else (for example, murder, assault and theft). Thus, from these core beliefs we derive the non-aggression principle to encapsulate the basic libertarian approach to all interpersonal conflicts born out of scarcity.

Therefore, libertarianism itself – to use the accepted parlance amongst libertarian scholars – is a “thin” rather than “thick” philosophy, addressing only the legitimate use of physical force. Another way of putting this is that, because everyone’s ends must be accomplished through physical actions which impact, physically, other matter in the real world, libertarianism concerns which persons may act and seek to fulfil their ends in relation to a given piece of matter, and which persons may not. Libertarianism does not, on the other hand, concern the contents of an individual’s ends or goals nor, once it is understood that an individual may act, does it have anything to do with whether or how he should act or which precise choices he should make. Libertarianism addresses neither the wisdom nor the foolishness, and neither the benefits nor the burdens that a given action may bring – merely that the choice to act in a certain way is the individual’s to make and further considerations about whether he should so act is the province of wider morality. A further way of putting this is that libertarianism deals with that which is legally permissible and may be done without response from the force of the law; it does not deal with that which is morally permissible i.e. with which behaviour is either morally accepted or morally questionable – all of which, in contrast to illegal behaviour, cannot be restrained or prevented by physical force, however odious or unpleasant. For example, I have the legal right to refuse to hold open the door for a lady; a SWAT team will not break burst in and arrest me for having refused to act in accordance with this social more. However, from a moral point of view, I have probably behaved quite rudely and in a socially unacceptable manner, meaning that such a choice was, most likely, not a good one to make. However, the choice is still mine to make and no one would have the legal right to use physical force to ensure that I hold the door open. In short libertarianism is about what I may choose to do whereas wider morality concerns what I should choose to do.

Overlooking or disregarding this important point is likely to cause a great deal of confusion. It is the mainstream view today that law and wider morality are not separate endeavours and that the law exists to enforce a positive, moral code. On the one hand the law is used to prevent us from making choices which are morally bad – past and present laws against vices such as drug and alcohol use and against various sexual preferences or adultery are a testament to that. On the other hand the law is also used to force us to act in ways which are morally good – such as the supposed charitableness, selflessness and altruism that is allegedly accomplished by the whole apparatus of the welfare state, which is funded, of course, through legally enforced tax contributions. Morally bad acts are outlawed because they are seen as bad choices to make from which bad consequences will follow and so nobody should be doing them. Morally good acts are forced because they are seen as good choices to make from which good consequences will follow and so everybody should be doing them. When a libertarian, however, then comes along and says that nobody should be legally prevented from injecting or ingesting whatever substances he wants in his body, that no one should be legally restrained from having consensual sex with whomever he wants, and that no one should be forcibly dispossessed of his lawfully earned money to be distributed to others, what he means is that people should be able to choose or to choose not to do these things – that he should have the choice to take drugs, or the choice to have consensual intercourse with a member of the same sex, or the choice to either keep or give away his own money. However, the casual observer, viewing these pronouncements through the prism of an intertwined legal and moral code, looks upon the libertarian desire to legalise acts such as drug taking as a moral endorsement of that act, and the libertarian desire to defund the welfare state as an admonishment of altruism or sacrifice while replacing it with selfishness. He overlooks or refuses to understand the fact that the libertarian is making neither a commendation nor a condemnation of these choices whatsoever – merely that the morality and wisdom of making these choices are no business of the law’s. Unfortunately, many libertarians serve to aggravate this misunderstanding by assuming that there is no further moral question concerning a particular act beyond its satisfaction of the non-aggression principle. Yes, a person should be able to, for example, say whatever words he wants on his own property without any interference from the law – but it does not follow from this fact that it is a good idea to say a particular thing at a particular time, nor does it follow that other people should not withdraw their support of you if they find what you have said objectionable. A person who takes a narcotic does not violate the non-aggression principle but it doesn’t follow from this fact that everything is okay and that there is nothing more to be said on the matter. Indeed, very bad consequences might follow for the drug taking individual and his family if he proceeds to do so and it would be ridiculous to suggest that these are irrelevant considerations. This does not mean to say, of course, that the non-aggression principle should not be primary concentration in building a just and peaceful society. Given that the violation of the non-aggression principle is so endemically legitimised by the institution that is responsible for nearly all of society’s woes – the state – it is, of course, entirely right that libertarians should persistently and consistently emphasise it. However, to view the non-aggression principle as the only worthwhile consideration would, if taken to its logical conclusion, amount to a travesty for the principle only concerns where one may act, not whether he should so act.  Shorn of all other reasons to act or not to act, those who wed themselves to the principle but to nothing else would be devoid of any impetus to make one choice over the other and would, in fact, never act at all! While it is true, therefore, that libertarians in their capacity as libertarian theorists are only concerned with the proper application of the initiation of violence in society, in their role as citizens in society they must also cultivate a positive, personal morality, a personal morality that will permit the libertarian to add value to moral debates far beyond the limits of libertarian theory – while keeping firmly within his sights that none of his views are anything to do with libertarian theory itself.

It cannot be emphasised enough how embracing or understanding the very limited scope of libertarian theory affords a tremendous degree of intellectual clarity for political and moral philosophy. Theories of interpersonal ethics concern how we, as rationally acting individuals, should behave towards each other – the choices we should make that affect our own lives and the lives of those around us. It might be a good thing for each of us to give to charity and to care for one’s elders, for example. However, if theories of interpersonal ethics concern the choices that people should make, then their starting point needs to be that an individual really does have a choice as to whether he should act one way or the other. A person behaves morally or immorally if he has moral responsibility for his actions – i.e. that what he did was born out of his own free will. He does not so behave if his action was forced or if he was otherwise acting as an automaton. This fact is frequently recognised with acts that are seen to be morally bad or evil. For example, if I am holding a knife and somebody grabs my hand and plunges the knife into the body of another person who subsequently dies, few people, if anyone, would agree that I was the murderer as opposed to the person who grabbed my hand. My action was not chosen by me; it was, rather, completely forced and out of my control and thus I do not bear moral responsibility for the ensuing stabbing. Similarly, the law recognises circumstances where an individual is placed under such a degree of duress that his moral responsibility is severely compromised if not totally eradicated. If, for example, someone holds a gun to my head and threatens to shoot me dead unless I stab another person then I am relieved of moral responsibility for the resulting injury or death, at least to a degree. This relief from moral responsibility is seldom, however, recognised with moral goods. If it is morally good for me to give some of my money to the poor then I can only be said to have behaved morally – i.e. to have done a good thing – if I have chosen that act. If, on the other hand, such an action is forced – that I am, Robin Hood-style, robbed of my money and it is then given to the poor – then I have not done anything good at all. I can neither be praised nor condemned for whatever result this action will bring because the choice was not mine – I had to give up that money regardless. It follows from this, therefore, that if giving to the poor is a good thing and is, further, the hallmark of a caring and compassionate society, it is ridiculous for this giving to take place through the forced mechanism of the welfare state. When people pay their taxes to fund the welfare state they don’t give voluntarily at all – rather, the money is forcibly taken from them. The original donors therefore did not behave in any way morally good or morally bad; indeed, strictly, they did not “act” in any way whatsoever. Because they were forced to give up their money, neither care nor compassion was ever shown on their part; in fact, it is more likely they will be extremely resentful. Moral theories that allow for the enforcement of their ends through violence are therefore not really theories of interpersonal ethics at all; rather, they are theories of how the enforcing party – i.e. usually the state’s officials and lackeys – should behave unilaterally, treating everybody else as little more than tools to be wielded towards whatever ends the specific theory so desires. That’s why all socialist and collectivist theories are completely contrary to the reality of human nature – they suppress the very real desires and choices of millions of ordinary people for the benefit of the ends sought or desired by a handful of political masters and bureaucrats. Libertarianism, however, preserves each individual as a moral agent with the ability to make the choices that he wants with the means that he lawfully owns; it forms a true foundation for wider moral theory by reminding such theories that seeking violent enforcement of their ends is no theory of moral behaviour at all, such behaviour requiring moral responsibility for one’s actions. Thus we can see the importance of the place of libertarianism in philosophy as a whole is as a thinly conceived theory concerning the legitimate use of force and violence between rational persons. It is not a complete moral philosophy but it serves as a firm basis for moral philosophy, and this important purpose would be severely impaired if libertarianism as a theory was, instead, conceived of as “thick” or demanding additional moral imperatives.

Beginning from this understanding of libertarianism in theory we can move on to discussing libertarianism in practice. How will a libertarian world be brought about and what will it look like? What kind of institutions will build and preserve this libertarian world? What is it that is preventing us from achieving a libertarian world today? What needs to be the focus of our efforts? In answering these questions we are going to set ourselves the somewhat ambitious task of attempting at least a degree of reconciliation between what are perceived as distinct “camps” within the libertarian movement. First, there are the “thin” libertarians and the “thick” libertarians mentioned just a moment ago; and second, there are the “anarchists” – those who believe that no state is justified at all – and the “minarchists” – those who believe that minimal state is justified for the prevention of aggression. What we will show is that, when it comes to the most likely and practical way that a libertarian society can be introduced, these largely theoretical differences may not be that important and that all libertarians can proceed towards one, common aim.

In beginning our task we first of all need to define precisely what a libertarian society in the real world will actually be. An uncontentious definition would be a society in which the non-aggression principle is adhered to so widely, through one way or another, that violations of it amount to little more than minor incursions and nuisances rather than endemic, perennial societal ills. Some violent invasions against the person or property of other people will always exist – there will always be, after all, criminals and those who are willing to do bad things. The important point, however, is that they do not approach the scale of systematic violence and destruction that our governments heap on us today.

If we accept this definition then there are three problems which we need to consider. The first problem is how to eradicate, from the mainstream consciousness, the legitimisation of the initiation of force or violence – in other words, how do we ensure that the non-aggression principle comes to be viewed as both true and just by almost everyone? How will all persons, regardless of their status or position, come to be subject to this same, basic prescription? The second problem, however, concerns how we will reduce actual violations of the non-aggression principle to a level far below that at which we languish today in order for a very real peace and prosperity to flourish. It would be no good if we achieved the first goal of educating everyone about the injustice of stealing and killing, for instance, yet we all happily stole and killed because the incentives and institutions required to deter such violent behaviour did not exist or, indeed, were impossible to bring about. If this was the case then libertarianism would simply be a theory without any practical application, a whimsical idea that would have no relevance to the real world. The third problem, which is the most difficult of the three to comprehend, is whether a libertarian world will be created from the top down or from the bottom up. Will it be sufficient, for example, for a small band of diehard libertarians to overthrow the existing rulers, install themselves as the supreme leaders and proceed to order everyone to adhere to the non-aggression principle? Or will a sustainable libertarian world be brought about some other way?

Happily, if we examine each of these problems in turn we will find that they point to a common way forward. Addressing the first problem of the legitimacy of force and violence in our world today, we can see that the primary vehicle for this legitimisation is, without a shadow of a doubt, the state – and the democratic state in particular. It is already acknowledged by almost everyone that individual, private citizens cannot steal, murder, thieve, etc. There is no general or widespread problem of people failing to recognise that I, as a private citizen, may not, for instance, steal from my neighbours to fund my business, nor may I use violence to get other people to do what I want with their property. I may not kill someone in the street or bomb houses because I believe there might be some threatening or nasty people inside of them. These acts are, quite rightfully, recognised as unjust and illegal. When it comes to the mechanism of the state, however, people’s attitudes are markedly different. It is, apparently, perfectly legitimate for the state to steal from its citizens in order to fund its business of welfare and warfare; it is legitimate for the state to use force to “regulate” what you do with your own person and property, even though what you may wish to do inflicts no violence or infringement against the person or property of anybody else; the state is allowed to drop bombs on houses if it believes there are nasty people it doesn’t like inside, writing off the innocents who were killed or maimed in the process as “collateral damage” (or at least the state can do this in faraway lands where its voters neither have to see nor think about it). Far from being a check on state power, democracy (the only form of government that is assumed, without argument, to be just by anyone who expects to be taken seriously) has served to increase the power of the state – and thus the extent of its violence – by providing it with a veneer of legitimacy. The only thing that can possibly be said in favour of democracy is that, once one realises that a majority will always get its way one way or another, it provides for a relatively peaceful and bloodless transition of political power from one majority to another. Today, however, democracy has been exalted to a level far removed from what it deserves for providing solely this simple benefit. Because people believe that they are “choosing” their leaders and “choosing” the policies that are implemented by casting their vote or “having their say” this, for some reason, means that it is alright for the state to go about its business of force and violence in almost any way it likes. The power of kings, emperors and those who otherwise claimed some kind of unique, divinely endowed right to rule was kept in its place by the fact that everyone else was shut out from either the use or benefit of state power; no king ever managed to create a world of paper money that could be printed and accepted as payment without limit to fund his warring ventures, nor could he build a redistributive welfare state; no king ever had an alphabet soup of departments and agencies managing your home, your family, your workplace, the products you buy, the services you use, and so on. However, because everyone in a democracy is apparently allowed to “have their say”, such a system not only allows everyone an opening to benefit or even direct the state’s immoral acts via the mechanism of government, but because such acts have been “chosen” by the “will of the people” they are transformed from provoking moral outrage to provoking moral celebration. Never mind, of course, that people do not actually have any meaningful say in a representative democracy – all they are allowed to do is vote, once every few years, between a tiny selection of carefully screened candidates who create the impression that they are bitterly divided yet agree perfectly on all of the fundamental features of the state which libertarians oppose. Only occasionally are the people allowed to come out of their corner to fight, as the British did with the recent referendum on EU membership and the Americans did with the election of Donald Trump as their President. What is important for the legitimisation of force of violence, however, is the fact that people believe that they are in control of the state. It follows, therefore, that delegitimising the state and weakening the power of the state would go a long way to delegitimising the use of force and violence everywhere.

This leads us onto our second problem which is how to minimise the actual incidence of force and violence in society. Unsurprisingly our answer points once again to the primary culprit, which is the state. As we just mentioned, a powerful driving force for the actual commission of violent and invasive acts is their perceived legitimisation under the aegis of the democratic state. After all, if it is okay to relabel theft and violence as taxation and regulation and to do these odious acts through the mechanism of the state, then obviously they are going to be done a lot more often. However, so many of the catastrophes and calamities for which the state is responsible result from the actual, physical wealth and power that many states have managed to accumulate, with that wealth and power concentrated in an ever dwindling number of specific people and institutions. As a result of this the ability for the state to expand its predatory effects has been left almost unchecked. The consolidation of state territories into unified governments has been particularly disastrous in this regard. The two most destructive conflicts in history – the two world wars – occurred after the unification of Germany and Italy, with the drain the Bismarkian welfare state inflicted on the economic prosperity of Germany leading to the drive towards autarky and the perceived need to conquer the largely agrarian lands to the East. The nuclear terror perpetuated by the Cold War was made possible only because such large and powerful states as the United States and the Soviet Union were able to fund the building of their nuclear arsenals. The United States, the only remaining superpower today, has caused havoc in Korea, Vietnam, the Balkans, Iraq, Afghanistan, Libya, Syria and God knows where else simply because it can do so relatively unopposed. Smaller states with smaller tax bases and access to fewer resources simply cannot do this. Yet, ironically, because the state is still viewed as the fountain of all goodness, it is further state expansion which is called for in order to prevent war and preserve peace – as if it is all of us barbarous citizens who are causing all of the strife rather than the political leaders with their armies, navies and air forces. Proponents of such expansion fail to understand the obvious fact that if you wish to minimise war and its effects then the last thing you want to do is to make belligerents bigger and stronger as opposed to smaller and weaker. Nor do they understand that if you wish to promote trade and prosperity then so too must the state be cut down to size. The original project of the European Union was designed to unify and pacify the old warring colonial powers, creating a trading block with tariff free borders through which goods and workers could pass unhindered. We can certainly agree that the aims are broadly correct – if you wish to achieve economic progress then you need to encourage capital accumulation, which can only be done through relatively strong private property rights, minimal taxation and minimal regulation. However, the path that was taken to achieve this was to consolidate and centralise Europe’s political institutions in Brussels and to, eventually, create some kind of European super state. This is the precise opposite of what you want to do if your aim is free trade and increasing prosperity. If Europe, instead, consisted of several hundred, or even up to a thousand small territories and independent cities the size of say, Monaco, Liechtenstein or Luxembourg then the lack of each state’s ability to access both natural and human resources, except through international trade, would be reduced to a minimum; thus such states could only introduce onerous tariffs and border controls at the expense of crippling themselves. Moreover, a small state cannot increase its internal taxes and regulations to levels which are too onerous otherwise residents will simply hop across the border (which, in a small state, is likely to be only be a few miles away) leaving the heavily taxing state drained of its productive population. Thus, what keeps taxes, regulations and border tariffs minimal to non-existent is the competition between many small states so that they can attract investment, talent and resources. In turn, production of these things is encouraged and wealth creation accelerates. However, in a vast super state covering thousands of square miles and controlling an array of natural resources and a population of millions, the taxing and regulating authorities are now left relatively unchecked. No longer do they have to attract resources and talent and neither can these things leave as easily – for they are already there within the territory of the large state and crossing a border that may be thousands of miles away is markedly more difficult. It is for this reason that the EU has become one of the most heavily regulating and interfering state institutions in the world, a fact which incites farcical hilarity, if not utter despair, when you consider that there are more than 12,000 EU regulations concerning milk. If all of these regulations are necessary it’s a wonder how previous generations ever managed to enjoy the stuff at all. It is true that there may be no internal tariffs and border restrictions within the EU and yes, goods and workers can move freely between, say France and Italy. Business leaders acclaim how great this is for commerce and enterprise, yet what these business leaders overlook is that the EU itself has become a burdensome engine of internal taxation and redistribution that far outweighs any gain achieved through the abolition of border tariffs. Indeed, each member state’s contribution to the EU budget effectively amounts to a tariff anyway – the only difference is that the burden of paying it is borne by the citizens of each state as a whole rather than individual industries or businesses which ship goods to the EU. Fortunately the EU does not have any direct, taxing power over the citizens of member states, yet it has been moving to nullify tax competition between states, the very element that is so important for keeping tax rates low and for attracting investment. And let us not forget, of course, that the EU is more than happy to charge onerous tariffs on imports from outside of the bloc. Super states, and prospective super states such as the EU, are not single markets promising trade, prosperity and the best conditions for enterprise – they are, instead, single bureaucracies of heavy taxation, crippling regulation and welfare parasitism.

In his astonishingly perceptive book, The Breakup of Nations, Leopold Kohr pointed out that almost every notable achievement of the human race – great art, great literature, great culture, great technology, great philosophy, and so on – is all but irrelevant to the preservation of peace and prosperity. The only relevant factor is the size, or, rather, the relative size of states. Big states prey on their citizens and their foreign counterparts not because they think they either should or that to do so is good (although they may believe these things), but simply because they can. Great power endows one with great temptation, a temptation which political leaders nearly always cave in to. The evidence for this is difficult to dismiss. Centuries of cultural refinement marked by some of the world’s finest achievements in art, literature and music did not prevent France and Germany from each having their turn at conquering the whole of Europe; the philosophy of freedom and liberty didn’t stop the British from building an empire; the economic and technological progress of the United States has not stopped her from interfering, disastrously, all over the world. Yet the era in recent history which supposedly (but not entirely accurately) marked the nadir of man’s cultural and economic achievement – the Dark Ages – was, by comparison, relatively tranquil, as it was also populated, for much of its history, by relatively smaller, weaker states. From all of this it is clear that the breakup of states into far smaller units – what we might call political decentralisation – should be a clear aim of libertarians.

It is on this note of decentralisation that we move onto our third and final issue which is whether a libertarian world will be brought about from the “top-down” or from the “bottom-up”. Would it be enough, for example, for a defiant band of libertarians to take over the state apparatus and to enforce a libertarian legal code? What we have just said about power and corruption should make our initial answer obvious. If libertarians take over the state won’t they simply become corrupted by its power and influence? Or, more likely, if the populace whom they now govern was not similarly enamoured with libertarian values, wouldn’t the leaders cave into the pressure to use the power of the state to “act” in order to correct some kind of perceived societal ill? A comparable occurrence of this nature in recent history is the American Revolution, which is popularly portrayed as the overthrow of a tyrannous, foreign king by the oppressed but passionate American people fighting for their freedom. Yet, in reality, what occurred was that a new elite simply served to replace the power vacuum that had been left with the departure of the British. Not only were the founding fathers far from unified on the question of precisely which type of government should replace the ejected monarchy, but very quickly aspects of the new United States began to resemble those of their previous colonial masters. We know today, of course, that the Constitution of the United States has utterly failed to constrain the power of the federal government. Yet even reading the original text alone should alert a critical reader to how un-libertarian it was in the first place. It does, after all, preserve the power to tax among a myriad of other horrors in Section Eight of Article One such as declaring war, raising armies and the infamous commerce clause. Within mere years of its adoption, the very same people who were victors over the repressive British provoked the whiskey rebellion, enacted the Alien and Sedition Acts, and even the great Thomas Jefferson found it difficult to constrain himself when, as President, he signed into law and draconically enforced the Embargo Act of 1807. If libertarians simply served to replace the despots they would very soon find themselves acting as the new despots. A genuine libertarian revolution will be impossible unless the power of the state is chopped from the bottom rather than simply given a haircut at the top.

The more important point, however, is revealed when we consider what it is that institutions such as property, rights, obligations and laws – the backbone of a libertarian society – are supposed to serve and how these institutions developed historically. The mainstream point of view in this regard is hopelessly confused, wallowing in a misunderstanding of the abilities and extent of human design and ingenuity. The results of such ingenuity are, of course, all around for us to see. We can easily marvel, for example, at the achievements of humans in the fields of science and engineering, at how we have transformed barren, dead matter into great structures such as buildings and bridges, how we have harnessed the power of electricity to provide us with heat and light, and how a device as small as a microchip can process information many times faster than the human brain. Every way we look we see the results of humans striving to shape the world in the way that we wish in order to meet our needs and improve the quality of our lives. Since the advent of Cartesian rationalism in philosophy, it has seemed almost obvious that if humans can shape the resources we have around us to do what we want them to do then so too can we apply this same engineering bent to society itself and to societal institutions. In other words, that we can deliberately shape society and design its institutions to do what we want them to do. If we can construct the Empire State Building then surely we can construct laws, regulations, rights, and obligations in order to make society a better place? That is the fundamental view of statists today – that society is something there to be managed, pushed in certain directions and squeezed into certain shapes by our political masters served by an army of elite intellectuals. The laws that are enforced are to be designed and enacted through legislation in order to push, from the top down, society onto a particular economic and moral path. Society, however, exists only because individual people perceive that social co-operation is essential for meeting their needs and for vastly improving their quality of life. In contrast to this, it would be quite possible for each person to be content to live an atomistic existence, finding his own food, building his own shelter and entertaining himself devoid of all social relations and interaction with anybody else. If this was the case then society, as such, would not exist. If the population of a territory consisted of 1,000 people yet each of those people lived such an isolated existence then that is all you would have – a piece of land with 1,000 people on it; you would not, however, have a society of 1,000 people. Because, as should be obvious, such an existence would result in the starkest and most brutal impoverishment, humans have, instead, decided to come together and co-operate. Such co-operation has developed from our existence as hunter gatherers, through the Neolithic Revolution and has reached its most advance form in the division of labour – the specialisation of each individual in a particular task which serves the needs of others. It is this social co-operation which is, in and of itself, society. Because the purpose of this co-operation is to further the needs of individuals it is the case also that the institutions that are required to facilitate this co-operation appeared because they made the pursuit of our individual needs and wellbeing easier. The great societal institutions – such as the family, the law, money, and morality – were never explicitly designed or “invented” by anybody. Rather, they were the product of centuries of evolution or of what we might call a “spontaneous order”, and the precise content of their makeup was determined by what facilitated the needs of individual people. The family, for example, developed during an era in which humans were pure consumers of what the Earth had to offer rather than producers – much like animals are. The availability of resources in a society which only consumes and never produces is heavily dependent upon the height of the population. As humans could keep on breeding merrily the population quickly rose to a level where the quantity of resources was insufficient and hence everybody suffered from a reduced standard of living. The family unit developed as a response to this problem in order to make fathers bear the cost of their own children. The more children they have then the more food and shelter they would have to provide for and so this furnished a powerful incentive to keep the population relatively in check. It is from this that our current code of sexual ethics has also developed – the requirement of sexual fidelity and the moral penalisation of sex out of wedlock, for example, all stem from the fact that such acts defeated, or could potentially defeat, the object of controlling the levels of population vis-à-vis resources. Money, which today is printed and controlled entirely by the state, was never explicitly designed by anyone but, rather, arose as a product of barter, whereby one or a handful of goods (usually, except for specific situations, precious metals) became more marketable than any other and hence came to be regarded as valuable not for whatever practical use they may serve but precisely because they could be exchanged. Nobody woke up one morning and, surveying the difficulty of trading individual goods directly, decided to say “I know! Let’s invent a good that we can all trade for everything else and call it money!” No wise leader started, out of the blue, to produce money or manufacture money, nor was the precise monetary commodity in a given situation explicitly chosen by anyone. Rather, given the immense power it afforded, the minting and issuing of money was usurped at a much later date – a usurpation which, of course, was only completed in 1971 when the US dollar’s last tie to gold was severed (and which may not be finally complete until states have succeeded in issuing a common, worldwide, paper currency). Law similarly evolved over centuries, or even millennia, out of interpersonal conflicts people ran in to over resources. The source of a legal case was the fact that two people each wanted to use the same resource to meet their own ends whereas, owing to the fact of scarcity, only one could do so. In other words the precise areas in which the law was concerned were decided by whether or not people could peacefully meet their needs in a given situation. If they could not then it was their perception of a conflict that gave rise to legal rules and principles. This is very important lesson that many libertarians, let alone everyone else, are yet to understand; the precise boundaries of aggression cannot be decided from on high by a wise and powerful leader because the elements of aggression – a physical invasion of another person’s property – are all dependent upon the parties’ perception of those physical transgressions as preventing them from fulfilling their needs with the resource in question. What is aggressive behaviour and what is not cannot be based upon what a political leader thinks is a conflict between two people (as all political leaders do when they enact legislation), nor can it be based upon some precise, scientific measurement of whether one body collided with another. If I shake a bed sheet and a piece of dust travels through the air and lands on your shoulder then, even though I have initiated an action which physically impacts on your person, this is not aggressive behaviour because such an action does not interfere with your ability to use your body to meet your ends. Indeed, most likely, you wouldn’t even be aware of the speck of dust at all. If, however, I threw the bedsheet over your head and wrestled you to the ground then this would probably be regarded as assault and the law would find me liable as such. Both actions concern a physical transgression of your person or property initiated by me, but only the one which interferes with your ability to use your person and property to meet your needs as perceived by you is the aggressive action. None of this should be taken to suggest, however, that the precise content of legal rules is purely subjective, nor should legal liability follow merely from somebody’s whim. Rather, objectively defined rules are drawn from typical experiences of what is and what is not aggressive, such typical situations arising before legal adjudicators again and again. Most people do not want to be killed by another person; most people do not want their belongings taken; most people do not want to be raped. So, for example, if one person kills another then it is presumed that the deceased did not so wish to be killed and the accused must adduce evidence to the contrary if he is to avoid liability. On the other hand, most people do not perceive that a speck of dust landing on their shoulder as a result of someone shaking a bedsheet is aggressive and invasive behaviour. So anyone who turned up before the court alleging that such an incident was aggressive would most likely be told that, even if, subjectively, this speck of dust prevented him from enjoying his person or property, he alone should bear the burden of protecting himself from this unusual sensitivity, rather than forcing everyone else to tiptoe around him. What we can see as a result of this, therefore, is that the precise boundaries of aggression which are expressed in precise laws are very much determined by the customary and conventional context. This is perhaps best illustrated when determining the requirements to enter contracts. If I sit down in a restaurant in Great Britain and order from the menu then that action is sufficient to make me liable to pay for the meal as that is how the situation is understood in this society. My refusal to do so on the grounds that I had not been told explicitly that I would have to pay would be laughed out of court. On the other hand, in another society, it might be the case that you are assumed to be a guest unless the proprietor of the establishment states that you must pay for your meal. If I raise my hand at an auction I might find myself liable to pay for one of the lots; if I do it outside in the street I am merely saying hello to someone. The action is the same but whether I am placing a bid or simply making a greeting has to be judged by the context. So the same thing can not only mean different things in different societies, with different consequences following, but so too might they mean different things in the same society depending upon the precise situation. Legal adjudicators have to assess what the actions of the parties meant and what they intended through their actions according to the social, customary and conventional context in order to determine the precise limits of legal liability. Because, as we said earlier, society is emphatically not something that is managed from on high but is, rather, motivated by individuals, this is an evolving rather than a static process. Such evolution can evolve only through case law, i.e. through law made or “discovered” through actual cases involving real people in real conflicts, rather than through legislation which involves only conflicts manufactured or perceived by politicians and bureaucrats. The importance of the customary and conventional context also applies to which beings may enjoy legal rights and which may not. Libertarians are often chided for their lack of agreement over the issues of abortion and the rights of children but, strictly speaking, these issues cannot be resolved theoretically. Libertarian theory will tell you which kinds of beings enjoy rights and which types of action are aggressive; it does not, however, tell you whether a specific being enjoys rights or whether a specific action is aggressive. The questions concerning the legal rights of foetuses and of children are of this latter category – do they qualify as the kind of beings to whom rights apply, i.e. are they rationally acting beings? And, if not, at which age or ages will a foetus or child be deemed, or at least presumed, to be a rationally acting being capable of enjoying rights? Is the fact that a foetus grows inside the mother an invasion of the mother’s body or has she demonstrated some kind of consent to the foetus’s growth? None of these questions are answered by libertarian theory but, rather, they concern the application of libertarian theory according to the customary, social and conventional context. To take a deliberately extreme example in order to illustrate this, early, primitive societies ascribed natural phenomena to the will of deities, and were unable to differentiate between inanimate phenomena (such as the sun or clouds) on the one hand and conscious beings on the other. Let us suggest that, in such a society, trees are perceived to possess personalities and to have rational thoughts and feelings which could, through some way, influence the course of events (in a similar vein, the present author, as a very young child, believed that trees shaking their branches were the cause of the wind, rather than vice versa). The legal system (or other social rules acting as a precursor to a legal system) of this society would recognise each tree as a legal person endowed with rights, and that to invade the tree’s physical presence would be an unlawful aggression against the tree’s person. Today, however, due to the advances of our scientific understanding, we have sufficient reason to believe that trees are not, in fact, rational beings nor do they possess the will or ability to alter the course of events. Although “living” they are not conscious and simply occupy the sphere of natural resources which can be owned by actual rational beings.

To re-emphasise, the important point about all of this is that, given that both the nature and the content of the elements that preserve societal order – such as rights, obligations, property – are determined by the needs of individual people, it follows that these elements can be neither determined nor shaped by groups of leaders or intellectuals acting from on high – in other words, by centralised, state institutions. Libertarians and free-market economists wax lyrical about how the state cannot hope to run and control specific industries productively in order to meet the needs of individual people and how the state has no rational method of directing resources in ways that best meet the needs of those people. Rather, such industries always end up succumbing to the priorities of the political leaders, the bureaucrats and the employees. Exactly the same is true of the institutions that concern societal governance. The entire state apparatus of legislatures, courts, bureaucracies, and their supporting police and military forces are designed not to give effect to and to prioritise the needs of individual people but, rather, to promote, enhance and push forward the visions of society held by liberal elites – visions of collectivism, equality, uniformity, and multiculturalism that destroy private, voluntary allegiances to localised institutions such as families, communities, and places of worship to direct it towards the glorification of the ever expanding state. The move towards greater state consolidation through supranational outfits such as the United Nations, the European Union, the IMF and so on is designed to concentrate decision making authority in an ever dwindling number of colossal institutions, centralising power and control in the handful of powerful oligarchs. A genuine libertarian society – a society distinguished by freedom for the individual – will therefore only come about through the destruction or dismemberment of the institutions which are diametrically opposed to this freedom. In practice this will mean halting and reversing the current trend towards state consolidation and inter-state co-operation, and seeking the breakup of individual states into as smaller territories as possible. This will scatter decision-making authority away from the centre and towards the individual as close as possible by achieving the increasing localisation of institutions which bear the responsibility for preserving order and governance.

The way forward for libertarians to bring about a libertarian world is therefore relatively clear – we must seek, emphatically, the de-legitimisation the state, the dilution of the power of the state, and the reduction of the size and territorial reach of each state. If, however, we needed to select just one of these elements – one call to action that could be regarded as the libertarian rallying cry – it appears that the third aim of reducing the size of each state is likely to have the greatest impact. Not only is it from this achievement that the other two are likely to follow but it is also the one which, at least after 2016, gives the appearance of being most likely to succeed and of being brought about in the right way from the bottom up rather from the top down. Ethno-nationalism and secessionism has returned to our world as a reaction against the forced centralisation of state institutions and metastasising of supra state bureaucracies; open borders, forced integration and globally managed trade are giving way to each state and smaller territories determining their own policies in this regard. Although our faith in the political process – the game that the statists want us to play – should be cautious, we have to hope that events such as the “Brexit” vote and the election of Donald Trump indicate only the beginning of this rebellion from the masses, a rebellion against the globalising, centralising and bureaucratising forces that will far eclipse the significance of those two events alone.

Moreover, this aim of seeking to reduce the territorial size of states and state institutions achieves also a degree of reconciliation between the distinct camps within the libertarian community we described earlier – between “thin” libertarians and “thick” libertarians on the one hand, and between “minarchists” and “anarchists” on the other. For libertarian “thickests”, we are fully conceding  that the move towards decentralisation and to smaller state territories to likely to be dependent upon the willingness of people to place their trust in more localised, informal, and voluntary institutions such as a common culture, a common language, common customs, a common morality and a common (or a common absence of) religion. It is these alternative elements which are required to shift people’s reliance away from the formal apparatus of the state for their feeling of identity, security and community, and also to generate a feeling of empathy and friendliness within each locale which is needed to grease the wheels of social co-operation. It is precisely because these common elements are the antithesis of statism and state growth that all socialising theorists and politicians have sought to denigrate and destroy them – as they are largely trying to do now through mass migration and the fostering of welfare dependency. By eradicating cultural, community, conventional, customary identities (as well as traditional morality) through its egalitarian, all-inclusive, non-discriminatory, socialising programmes, the state simply sows distrust, hatred, and envy which makes easier its task of theft, violence, and welfare statism. We as libertarians, therefore, should regard the promotion of these common elements and informal institutions as necessary for bringing about a libertarian world. For libertarian “thinnests”, however, we are also acknowledging that we, as libertarians qua libertarians, need not promote a particular culture, a particular language, particular customs, or a particular moral code. It is true that certain cultures, customs and moral codes may be more conducive to sustaining the non-aggression principle than others (and, as I have argued elsewhere, the requirement of non-aggression is, in and of itself, likely to promote and emphasise certain, broadly conceived values). However, it is not our job to determine from on high what these customs and cultures might be and to enforce them upon everyone else. Our focus, rather, is on breaking up the giant, behemoth states so that people can find their own way, building their own communities based upon their own values. Without the power of vast states to enforce and support them, the flourishing of these individual communities will undoubtedly depend upon them being able to adopt values which promote proper order, governance and social wellbeing. However, much of this is largely achieved by the fact of cultural harmony in the first place – that everyone in a community largely agrees on the same basic values and that everyone’s behaviour is broadly acceptable to everyone else. In short, that all members of a given society are basically kindred spirits. Determining precisely what these values will be is, for libertarians, a secondary task at best. Moving on to minarchists and anarchists, if we break up states into relatively smaller sizes then minarchists can be satisfied that each territory still has some official institutions that are responsible for law and order; anarchists, however, will be relieved to know that because such decentralisation and deconsolidation increases the relative power of the individual vis-à-vis the state then the practical distinction between the state as a compulsory association on the one hand and as a voluntary association on the other becomes much less clear. Indeed, at some degree it will be completely abolished. At the extreme end, a small commune on a few acres of land comprising merely tens of people will be heavily reliant upon gaining the continual trust and enthusiasm of each of those people if the commune is to survive. However, a vast commune such as the former Soviet Union can treat each individual person however it likes – stealing from them, forcing them to do what it wants, and, of course, murdering them. Moreover, the ability of a small state to launch any foreign wars – which, in the long run, is the source of the loss of most of our freedoms – is vastly reduced, if not eradicated.

This, then, should be the goal of all libertarians, lovers of freedom, and those who are passionate about free enterprise and free association – breaking up the state into as smaller territories as possible and rendering state power and influence as inert as possible. We can hold some hope that this may be the way in which the tide is turning and that we can finally bring to a close this chapter in human history that has been marked by socialisation, collectivism, statism, bureaucratism and endlessly destructive warfare built on a cushion of false prophets, false values, false money, and a false prosperity.


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The Nature and Origin of Rights, Part Two

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


View the video version of this post.

Children and Abortion – A Follow Up

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In response to comments to the original essay on the topic of the rights of children by the YouTube user Justin Sane (which I presume is a pseudonym), I’m presenting an elaboration here on several themes to build on and emphasise what was said in the original essay on the rights of children:

  1. That the quality of a rights holder is a rationally acting being as opposed to a being distinguished by any other standard;
  2. That, when it comes to resolving cases on account of the fact that a child matures and develops into adults in different stages. this does not result in a false dichotomy or binary outcomes;
  3. That the transmutation of political norms into legal norms is likely to afford children legal protection;
  4. There is an elaboration of ostracism as both a legal and extra-legal remedy;
  5. Finally, there is an explanation of why the protection of children through extra-legal measures does not compromise the effectiveness of resolving conflicts between adults through legal measures.

Beginning with the first issue, the source of any rights and obligations is a conflict of actions, a conflict that is generated in the minds of the disputing parties because a portion of physical matter is not capable of sustaining the ends of each. One of Justin Sane’s criticisms of my approach was that, according to him, it results in binary outcomes, disregarding other possibilities. However, the treatment of the political problem most certainly ends with binary results because the nature of the problem is binary. Actions are whole, concrete steps – they are either done or they are not done, never partially done. One may attempt to resolve a conflict between actions by breaking down or reducing an action into a smaller action, but this itself would then be an independent action which must itself either be done or not done. Where a conflict remains, the only solution is an exclusive right for one party to be able to fulfil his end and the other to yield. There is therefore either a conflict, or there is not; and there is therefore either a conflict holder, or there is not.

None of this, however, has any incompatibility with the fact that a child matures and develops gradually from childhood to adulthood, nor with the resulting legal rights of a child. I spent a section of the original essay criticising the very rigorous distinctions drawn between childhood and adulthood executed by the state, even when these where different for different types of act (e.g. the ability to drive, to have sex, to drink alcohol, etc.). I’ll return to this later but I first wish to address the fact that the concept of rational action, and no other criterion, is essential for libertarian rights.

The assignment of rights and obligations has, as I stated, no business outside the realm of conflicts. Libertarianism therefore needs to accomplish two things to be a successful theory. First, it needs to identify conflicts correctly. Second, it needs to demonstrate why the resolution of conflicts such as murder must be resolved in favour of the murdered person and why thefts must be resolved in favour of the original owner of the stolen property. It follows that liberty is destroyed by a further one of two, or both things. First, the invocation of conflicts where there are none, such that people are subjected to force when it is not justified; and second; where real conflicts do exist they are answered in the wrong way. Needless to say the latter is never presented as “murderers can kill” and “thieves can steal” but is rather dressed up with the view that everything can be decided by what is best for “society” as if “society” was an entity independent of its individual constituents with a clear cut conception of its own welfare; or that issues can be solved by us magically being able to “share” everything when the problem exists precisely because we cannot share.

The latter problem does not need to be addressed here. But the problem of defining conflicts most certainly does. The meaning of a genuine conflict has no application outside the realm of rationally acting beings. Physical clashes may take place between non-rationally acting beings and these may be competitive. An antelope may fight off a cheetah out of survival instinct but, unable to choose or comprehend its actions, there is no basis for any perception of the outcome that it strives for to be “good”, “bad”, “better,” or “beneficial”. All of these qualities are founded on the rational desire to choose to devote means towards ends resulting in actions – in other words, rational action, action that is able to be motivated by conscious choice. Furthermore, such an appreciation of outcomes has no application outside of the concept of rational action as it is only rational action, motivated by a conscious choice, in which an informed opinion to change the course of events has any relevance.

The criterion for bearing rights and obligations is not rational thinking, or any other kind of purely mental ability, as opposed to rational action. Although a conflict is always a clash of subjectively held valuations, it is only the physical manifestation of these valuations in real action that permits a conflict to be evidenced objectively in order to produce any meaningful identity of that conflict and its resolution. A rock, for instance, may be able to think rationally and may have mused in its mind more philosophical tomes than Descartes. But if I was to tread on it then its lack of rational action means that there is no way of identifying this objectively as a conflict. Thus the unique concept of rational action shared between rational beings gives rise to a common understanding of ends, means, choices, valuations, conflicts, and so on, and further provides the means to assess them objectively; we are all rational actors and we all know what rational action entails, so our ability to recognise it in others means that this criterion provides the further benefit of being an avoider of conflicts in the first place.

There are therefore no rights and obligations without a conflict, there can be no conflict without a conflict holder; there can be no conflict holder unless he makes a conscious choice to devote means towards ends; devoting means towards ends is a rational action, the province of a rational actor; there are therefore no rights and obligations outside of the realm of rational actors. It is therefore rational action that is the linchpin of all of the elements that give way to the generation of rights and obligations.

To dispute that it is the quality of rational action – or, more precisely, rational action perceiving a conflict – that determines rights produces no firm basis for libertarian theory. For otherwise in all cases it would mean that the causative event of legal enforcement is not an objectively identifiable conflict of physical actions between the alleged perpetrator and the alleged victim as perceived by those parties, but, rather, conflicts that are subjectively observed or hypothesised by third parties and onlookers, permitting these mere observers to use force to remedy the alleged ill.

In a situation involving A and B, where A is a rational actor and B is not (either an object, an animal, a baby, or whatever), A faces the conflict as to how he should behave towards B and may assess his options in terms of that which is good, which is moral, which is the “better” outcome and so on. But the product of this conflict is wholly in A’s mind, his need to choose between options, not in B’s. Only A, possessing the quality of rational action has the capacity to reason whether alternative outcomes can be assessed in terms of these qualities and to put one of these outcomes into effect. A might be motivated by what is good for B in a way that a person may consider what is good for a pet, a flower, an oil painting, or a baby, but there is no conscious, reciprocal involvement from B in this process motivating what the outcomes should be. There is, therefore, in no meaningful sense a “conflict” between A and B, a conflict that would result in any kind of right by B against A to cause one specific outcome to trump another.

If C, a rationally acting third party, comes along he may develop theories as to how A should act towards B, and may even name this theory as a body of “natural rights”, “natural contracts” or whatever. Such espousals, whatever form they take, may be very wise, very learned, even very beautiful and harken to a seeming harmony of the natural order. However, any conflict that C identifies between A and B in this regard is a product of C’s mind, not of B’s. Any attempt by C to enforce any of “B’s rights” that he has supposedly identified is therefore not a resolution of a conflict between A and B, it is the resolution of a conflict between A and C. C is not alleging the right of B to enforce certain behaviour from A that B wants – C is alleging the right of himself to force A to behave towards B in a certain way that C wants. The pivotal party to the conflict is not B, it is C; if C dies then the conflict dies with him, a conflict un-rooted in the objective basis of a physical contest between himself and A. For any meaningful rights and obligations to arise between A and B, B must assert himself as an independent rational actor who perceives a conflict between himself and A. C’s theories may be relevant to B in this regard and may serve to heighten his awareness of his place in the world and of his understanding of his relationship to his fellow beings, should he have the capacity. But they are not in and of themselves a replacement for the quality of the rational action of B that perceives a conflict with A. Other standards such as sentience, maturity, language, numeracy, the perception of pain and so on may be related to and intertwined with rational action, but they are not themselves rational action. Only the ability to make choices devoting means towards ends, whatever the substance of these choices may be, has any bearing upon the perception of a conflict and thus on the question of rights and obligations.

Basing any kind of political norms upon the perception of conflicts such as those of C, however genuine, honest and well-intentioned that this may be is precisely what leads to the destruction of liberty. “The welfare of the people has always been the alibi of the tyrannous”; “the road to hell is paved with good intentions”. Furthermore, unlike the quality of rational action, such theories that C may espouse, while they may be cloaked with apparently universal and everlasting principles, are often a slave to the substantive moral issues of their time, moral issues that are themselves based on the specific wealth, customs, and traditions that happen to exist. Thus they fail to transcend their localities of time or place and provide any universal grounding for political norms. Even apparently “obvious” or “clear-cut” cases of hypothesised conflicts are an illustration of this fact – such as children’s rights. In pre-industrial, agrarian societies where the main economic unit was the family, children were indeed regarded as little more than property of the parents that possessed an economic value. Although research produced by scholars since the 1960s has indicated that child rearing was not brutal and parents made sacrifices for their children to maximise their welfare such as care during sickness, the general attitude is hardly unsurprising in an epoch of extreme poverty where infant mortality was as high as one third of babies born. Indeed, we can surmise that telling a mother that she may legally kill her child may have been greeted with an acknowledged, if reluctant acceptance if there simply wasn’t enough food to eat. Renaissance/Enlightenment thinking, coupled with the romanticised view of childhood as an “age of innocence”, began to see children as having an independent identity that accorded them certain rights, but the product of this thinking was far from uniform. The nurturance or caretaker view was, at its earliest, espoused by John Locke, and Thomas Spence’s “The Rights of Infants”, one of the first pamphlets to specifically consider the issue, is subtitled “Imprescriptible Right of MOTHERS to such a Share of the Elements as is sufficient to enable them to suckle and bring up their Young”, and is written as a dialogue between mothers and the aristocracy. In other words the right was of the mother to demand from the gentry the wherewithal to nurture her infant from the produce of the land. The alternative view, that children have much more independent rights, became augmented and subsumed by the onset of industrial society (in which children often worked in factories), and the backlash of the middle class intelligentsia against the “squalid” and “destitute” conditions of industrial workers generally, a backlash that was itself subsumed by the descent into socialism and communism. But what abolished child labour was not a call for children’s rights; it was the fact that adults could produce enough wealth for a child to survive and flourish without the latter having to work. The right of a child not to labour and, instead to be supported by its parents, are, like any positive obligations, wholly dependent on there being enough wealth to accomplish this. In the twentieth century, The Declarations of the Rights of the Child, the precursor to the modern UN Convention on the Rights of the Child which is, as of this day, enshrined in international law, was drafted by Eglantyne Jebb, the founder of the charity Save the Children that was set up to alleviate the starvation and poverty of German and Austrian children as a result of the First World War, a war which would not have occurred without imperialism, state militaries, the drive to autarky, central banking, etc. The creation of the welfare state and the subsequent disintegration of the family it has caused, together with government provision of education, have all served to make the rights and conditions of children a public affair. Far from being in anyway universal or an engrained part of humanity, the modern development of children’s rights has been welded to the growth of the state and all of its catastrophes and calamities.

Even if however, we attempted to curtail C into developing a theory that advocated rights between A and B that were in accordance with liberty, it would be immensely difficult, if not impossible, to produce a theory that categorically insulates this from either abuse or outright usurpation. Let us say, for example, that all rights holders are not objects, or animals and must, instead, be endowed with the quality of being human, so that we can never be forced to behave in certain ways towards objects and animals but we can  be forced to behave in certain ways towards human beings. Hence, we have dismissed the most outlandish anti-libertarian theories that C might have devised, we say to him that A and B must both be human for any theory to apply to them. We have still, however, left the door open to C to conjure up all sorts of other theories of “society” and “the harmony of man” in order to invoke all manner of rights and obligations between the two. I personally marvel at any author who can persuasively attest to the harmony of the market place, the beauty of freedom and the unfathomable extent of man’s accomplishments unleashed by capitalism. But other accounts can be made to argue the complete opposite, all the way from the naive but plausible reinterpretations of social co-operation under the division of labour to connote a false sense of brotherhood, togetherness and family that looks after each other, all the way to more sophisticated treatments such as those of John Rawls. Thus I could be legally forced to help adults in need; to give food to the hungry; to give medicine to the sick. In short, a welfare state.

If, in response to this, we attempt to introduce a further limiting factor that legal rights may only be used by humans to repel aggressions – i.e. a human’s only right is non-aggression – this also is no good. An aggression has a physical manifestation but this fact in and of itself does not qualify a physical act as aggressive; it is only aggressive if the aggrieved party so deems it in his mind. Sex and rape are the same physical act, yet the first is consensual and legal and the latter is aggressive and illegal. Frustrated by the evidential difficulty of establishing whether or not a specific rape occurred, feminists and women’s rights groups have taken to redefining the concept of rape and blurring the line that separates it from consensual sex. So what we have now are acts which are viewed as consensual by the parties but redefined as aggressive by outsiders, thus leading to the infringement of the liberty of the alleged perpetrator based on nothing but a string of fictions – that yes means no; that acceptance is repellence; that love is now hate; and so on. But forgetting that aggression and conflict are mental categories in the minds of the parties can have even more disastrous consequences than for participants of a one night stand. The conflation, by Karl Marx, of economic classes, which co-exist peacefully, with legal castes, which do not, coupled with his half-baked economic theory of surplus value and the “appropriation” of profit from wages created what is undoubtedly the epitome of falsely perceived conflicts in the whole of human history – that between capitalist and labourer. These theories, developed entirely by middle class intellectuals and based on no aggressive relations whatsoever as perceived by the parties concerned, went on to enslave half the globe for the best part of a century. It is true that ideas such as “sex is rape” and “employment is slavery” may have instilled in the alleged victims the mere belief that they were subject to a conflict; but this simply causes the necessity to focus on their actions – what they did as opposed to what they say – to stand out in relief even further. It should also be clear that such theories do not need to be correct in order to have a disastrous impact; they simply need to be plausible and popular.

If it should be thought that it is a spurious, “slippery slope” argument and that it is unlikely that at all of this may result simply from the desire to prevent infanticide and child rape then we might want to think again. Throughout history, the power hungry have not only succeeded in exploiting to their advantage the slightest glimmers of light in the form of minor weaknesses and inconsistencies in opposing theories, but they have succeeded in redefining entire doctrines out of existence. The divine right of kings was flipped from subjecting the king to divine law to meaning that anything the king said or did was divine; to violate the constitution is to adhere to it; to be a socialist is now to be a liberal; to favour hampered trade is to be a free trader; and with libertarians like the “Bleeding Heart” camp and other “thickest” varieties perhaps we will lose “libertarianism” too. Moreover, practically anything that has been ever been written, as opposed to spoken, in defence of liberty has been tortured into producing the very opposite effects from those intended. As Cardinal Richelieu is supposed to have said, “give me six lines written by the hand of the most honest of men, I will find something in them which will hang him”. Finally, acolytes of liberty such as Milton Friedman and Friedrich von Hayek, however much they may have said some many great things on individual topics, are lauded by the mainstream precisely because their basis for liberty is weak and presents no real threat to the “statist quo”, whereas hardliners such as Ludwig von Mises and Murray Rothbard are just ignored.

Therefore, basing rights and obligations in rational action, grounded firmly in the reality of conflicts and their resolution, is the only rigorous and distinct basis for libertarianism. It is therefore conceptually correct to say that if a being is not a rational actor he has no rights and that if he is then he does. Any alternative is the product of invoking rights where no conflict exists, and even if these hypothetical conflicts are defined narrowly they provide only a tenuous defence against less restrictive views.

Returning now to the question of the legal rights of children, nothing whatsoever about this provides any difficulty regarding the gradual, complex and developmental transition of a child into an adult. The law’s only purview is the resolution of conflicts, not to make sweeping decisions concerning every facet of life. As I stated in the original essay:

In a free society, different children will reach different milestones at different ages, when they themselves see fit to accomplish them. Hence, one child may decide to get a job at thirteen, another at fifteen and a third at eighteen. One may decide he is mature enough to give sexual consent at fourteen, another at sixteen and another not until he is twenty. The choice to leave home may be made at a similar array of ages. In the event of a dispute between an adult and a child a libertarian court will have to decide on a case by case basis whether the action of the child that is the subject of the litigation represented a rational action to devote means towards ends or was simply an instinctive action.

Courts do not, therefore, go into the world and make grand pronunciations such as “Tom is a child”; “Dick is an adult”; “Harriet will be an adult in three years”. Indeed, most children will coast from childhood to adulthood without ever realising the precise points at which their competence to effect certain outcomes took place, and libertarian courts are never going to make any judgment whatsoever on whether most children are, or are not, self-owners and at which point. Their role is akin to that of a watchman, not a nanny; their only competence is the case before it and legal regulation has no place in permeating any other aspect of life that is devoid of conflicts. Hypothetical judgments in hypothetical cases are not needed. If a child had been sold a mortgage and the child took the house and made all the payments and paid the debt then any hypothetical conclusion of a court of non-self-ownership had the case produced a conflict would have no relevance – both parties would be happy and no one ever need ask the question. If two sets of parents make a contract for adoption, the money is paid and the child goes then the fact that a court may conclude in a hypothetical judgment that the child is a self-owner and cannot be sold is irrelevant. All that matters, therefore, is establishing the quality of self-ownership – that the child acted rationally to devote means towards ends – for the purposes of resolving the real conflict before it, not for resolving any other. Thus a finding of self-ownership in one case, or the lack thereof, does not prejudice a contrary conclusion in a different case, real or hypothetical. In a case where the child approaches a sweet shop with cash in its hand, asks about the prices, dislikes them and then decides to steal some sweets a court may conclude that this was a clear rational action sufficient to categorise him as a self-owner and thus legally responsible for the crime. On the other hand, in the case involving the attempted sale of a mortgage to the same child, the court may find that no action of the child could be sufficiently interpreted as a rational action to borrow money to purchase a property, and any “signature” of the child on the title deeds has no greater legal significance than a dog’s paw print. If a young girl purchased condoms and walked to the house of an adult and engaged in sexual relations with that adult and the parents brought a lawsuit for invasion of their property in the child then the court may conclude that the actions of the child were a clear, rational choice of a self-owner to have consensual sex and the parents would lose the case. On the other hand, if the same teenager knocked the handbrake of her parents’ car the court may conclude that the parents are liable for any resulting damage caused by the run away vehicle. Such flexibility in the case law will serve to protect adults from harm by children also. Where a child kicks his football into the neighbours’ window, for example, the latter is likely to be more interested in suing the “deeper pockets” of the parents for replacement of the broken glass rather than the child’s piggy bank. Alternatively, in the case where a child has attacked his parents, the court may find that the child is liable in spite of being under the ward of the victims. Nothing about any of these possible judgments need have any effect upon any other part of a child’s growth and development or its interaction with other people, provided that these are devoid of conflict.

Nothing about what I have said here is contrary to the traditional short hands that a self-owner cannot be property; and that “property in libertarian tradition means absolute control of the thing owned”; for these are derived principles. We say that a self-owner cannot be property because we are typically referring to adults whom we regard as always acting rationally and thus are always independent and ownerless; and we can do whatever we like with our dead objects and regard them as our property because it’s virtually certain that such an object like a table or a cup will never act rationally. Indeed, the very criteria presented here is actually perfectly applicable in cases involving adults, even in our own contemporary legal systems. Absent some additional factor, an adult is not deemed to be legally responsibly for those actions where he can establish that he was acting as an automaton or with an instinctive response. Furthermore, an extension of the principle applies to property that is subject to multiple titles such as the freeholding and lease holding of land and other rental arrangements; each party bears the exclusive right to certain actions in relation to the same property.

Judging the quality of an action as rational is not, to be sure, ever going to be easy and there are clear overlaps with qualities such as maturity, understanding, knowledge, “sapience”, and so on, all of which may come into consideration and all of which libertarian courts will have to develop a framework for. Yet it is crucial that rational action itself – the conscious choice to devote means towards ends – remains the focus. We must remember that the result of a court case is not to make a loss disappear – it is simply to decide who should bear the burden of it. In cases involving adults in our current legal systems, undue stress is placed on motive, intentions or appreciation of the circumstances and consequences which serve to acquit defendants and leave a perfectly innocent party – the victim – saddled with the loss. Thus the decisions of court cases, lacking any primary rationale as to what constitutes legal liability, often serve as little more than policy vehicles for determining who bears the risk of loss from certain conflicts. By focusing on the fact, rather than the quality of rational action, libertarian courts avoid these difficult enquiries, but this clearly has to be relaxed in gradations when it comes to children. My argument would be for as restrictive a relaxation as possible to avoid reassigning loss to innocent parties (which could, it should be remembered, include the parents if they were left responsible for the tortious or criminal actions of a rationally acting child). It is also at least arguable that a finding of legal responsibility will improve a child’s understanding of consequences and contribute to its maturation and suitability for joining the adult world.

However, this is not the only thing that can be said on the matter as the transmutation of political norms into specifically legal norms is also heavily reliant upon their social, customary, conventional and even economic context. Indeed, so dependent is the development of legal norms upon these aspects that they cannot be reasoned theoretically, a fact that is usually lost upon libertarians who approach the discipline from economics or philosophy and are so accustomed to arguing everything from the a priori. Hence they push the problems faced by the development of strictly legal norms back onto their political theory. (This includes Rothbard in The Ethics of Liberty who, in order to classify children as the property of their parents yet deny the latter the right to kill or harm the child refers to them as “guardians or trustees”. But then, to avoid any possibility of positive obligations, he states that these “guardians or trustees” don’t actually have to act as such as they cannot be forced to care for the child. Randy Barnett once mentioned in a lecture that a group of law students managed to stump “Mr Libertarian” in his own living room purely by asking him questions that concerned strictly legal norms).

One of the factors that has a bearing on the development of legal norms is the fact that the legal adjudicative process itself is a product of its time upon which the quality, dissemination and coherence of legal rules will be heavily dependent. In a legal system covering a small jurisdiction or in tribal settings where conflicts are infrequent and adjudicated by the elders, every single case may present a novel and unexamined situation and justice may be dispensed and disseminated in varying degrees of coherence with regards to principle. In a legal system such as ours which takes place in a highly industrialised society of social co-operation under the division of labour, where the seeking of justice is contracted out like any other service to full time specialist jurists, scholars and practitioners with access to an array of precedent and case law, legal norms may have crystallised around clear principles to a much higher degree. We can also surmise that through education, communication, and thriving media and news outlets, legal principles will be well disseminated through the populace. The advantage of this type of legal system is that it makes possible to a higher degree the classification of cases into various categories of “typical case”, each of which may met with specific legal presumptions and variable burdens of proof based on the experience of a wide number cases. The question of self-ownership may be subsumed by such presumptions and burdens of proof.  For example, where the defendant is an adult there is a legal presumption that the adult is a self-owner and the burden is on him to prove otherwise in order to defray liability. On the other hand, where the defendant is an animal or object there is a legal presumption that this being is not a self-owner. We can further speculate as to what these presumptions and burdens may be in cases involving children.

First, in a case where the child brings the action before the court (or has appealed to a third party such as a school or neighbour to do so) there is a legal presumption that the child is a self-owner. Indeed, we might say that the appeal to justice and with it a sense of rights and obligations, itself a rational action, is the criterion par excellence in determining such an outcome. Second, where the alleged victim is a child, there is a presumption of locus standi (so a third party could bring to court a case where a parent is alleged to have killed his/her child). Third, where a child has not brought the action but the case involves a physical invasion of the child in rerum natura, there will be a legal presumption that the child is a self-owner. Fourth, in cases involving the homicide of a child (or any person, for that matter) in rerum natura, there is a presumption that the death was non-consensual. Fifth, in cases involving a physical invasion there is a presumption that this is aggressive and non-consensual. Sixth, in cases involving the physical invasion of an adult by a child, there is a presumption that the child is not a self-owner and the parents are liable for the invasion of the adult. Seventh, in cases involving an alleged contract between an adult and a child there is a presumption that the child is not a self-owner. Eighth, in cases involving sexual relations between an adult and a child, there is, similarly, a presumption that the child is not a self-owner. Ninth, where an act of defence by the child is evidenced, there is a presumption that this was a rational and not instinctive action and the child is a self-owner. And so on in ever more detail to sift out different types of case, for example between contracts to purchase sweets and contracts to purchase houses and cars, for example.

Thresholds for these possible presumptions could be determined by a court with reference to any criteria that are appropriate for the customary, conventional and social context. This could be specific ages, physical changes such as the onset of puberty, or a rite of passage such as Bar Mitzvah in a Jewish community. To be sure, they cannot be constructed so that the fact presumed completely obliterates the underlying reality, but their effect is not to alter the fundamental political norms of self-ownership and private property; it is simply to shift the burden of establishing or defraying liability between the parties. The burdened party always has the option of rebutting the presumption. The upshot of this is, therefore, where a party has any dealings with a child – such as intended sexual relations or an intended contract – they will have to take evidential steps above and beyond they would have to take with an adult to prove the child’s self-ownership and valid consent. Conversely, where he wishes to attack a child, he will have to prove that the child was not a self-owner. Needless to say, however, some of the presumptions as I have worded them above would be almost impossible to rebut, to the extent that legal liability would always follow resulting from a parent assaulting or murdering their child, for example. Yet in a hypothetical community plagued by feral children, where the overwhelmingly typical case is of children attacking adults, there may be a legal presumption that any harm to a child by an adult was defensive and not aggressive, thus the burden rests on the child to prove otherwise. In any case, however, it is clear that courts can develop legal norms that serve to protect children in spite of the fact the underlying political philosophy may not grant them any formal rights.

Turning now to an elaboration of ostracism, the just use of force in a libertarian society is, in my opinion, likely to be restricted to extracting restitution from the aggressor, i.e. to compensatory remedies, for which there is much theological, philosophical and historical support, and is unlikely to extend explicitly to punitive remedies. The replacement of the victim as the primary aggrieved party by the prosecutorial system itself and the role of enforced punitive remedies such as prison are intimately intertwined with the state and this is at least a prima facie reason for rejecting its use in a libertarian society. It is also far from immediately obvious that citizens in a free society, absent violently enforced taxes, would be prepared to pay their criminals board and lodging in order to extract some kind of punishment. Ostracism is therefore likely to be the primary punitive remedy. Let us explore briefly how this would work.

In pre-state, customary law systems the role of adjudication at the remedy stage was geared more towards reaching a consensus between the parties as to how the wrongful act should be righted, regardless of whether this wrongful act was intended or accidental. Thus there was little regard for the distinction between “torts” and “crimes” and everything revolved the parties determining their own solution between themselves. Hence, the absence of any specific punitive remedy was not an impediment to the potential desire of a victim to seek retribution and recompense.

Problems came about either when the offender refused to co-operate with a settlement, i.e. he would refuse to pay compensation out of his own wealth, or where he absconded entirely and fled from justice so that he was “on the run”. In the first case, the compensation due may be extracted by force from the offender. The way this would work in a libertarian society is that there would be independent, private adjudicatory services (“private courts”) to which aggrieved parties would take their cases. These bodies would gain a reputation for determining the outcome of these cases in accordance with libertarian principles. Such dispensation would lend prestige and authority for the enforcement of a remedy to an act of aggression. Therefore, when dispensing a judgment or solidifying an agreement between the aggrieved parties, the private court is stating that it would refuse to acknowledge any violent enforcement of the remedy as a new, independent act of aggression, and hence it can proceed unmolested. Therefore, if the offender refused to co-operate in paying compensation, it would mean that a private recovery agency would be able to extract that compensation from him by force without fearing that it too would then be subject to a lawsuit. In other words, as far as the enforcement of the remedy went, the offender would not be protected by the law.

In the second case, that of a flight from justice, ostracism was usually the result. This was not simply “social stigma” but was rather the branding of the offender as an outlaw – an extended version of the response to the non-payment of compensation. Under outlawry, an outlaw was not just a gun wielding bandit in the Old West. Rather, he was someone whom the justice system would refuse to protect in any circumstance when he was subject to an act of aggression of a third party – i.e. he was not someone who simply refused to obey the law but was some who was without protection from the law. In a libertarian society, this means that if the absconding offender is subsequently a victim of an act of aggression, the court would refuse to hear any case regarding the matter which the offender brought before it. The result of this is that a private recovery agency could use any means necessary against the offender – including the imposition of death – in order to either stop or capture him, knowing full well that it would subsequently not be prosecuted for this deed. Indeed, in its most extreme form, outlawry meant that any party could do whatever they wanted to the assailant in order to impede and/or apprehend him. This is precisely the origin of the familiar “Wanted” posters that bore the mugshot of fugitive criminals and popularised the fact that any force could be used against this individual. Furthermore, outlawry was deemed to extend to those who were harbouring or sheltering the fugitive – the origin of the crime “aiding and abetting” – and they too would also be fair game in any attempt to apprehend or stop the fugitive. The court would therefore not hear any case brought by aiders and abetters for injury or death sustained by them in any attempt to catch the fugitive. Of course, if totally innocent parties were caught in the crossfire then whoever caused these injuries would be liable.

Ostracism, in the form of outlawry, was, therefore, not merely banishment into exile or a branding of the offender as a nasty person with whom people shouldn’t deal. It was, rather, an incredibly harsh punishment. The absconding offender found himself without protection of the law, and no one else would help him as they too would lose their protection of the law. In cases where the offender refused to give himself up it was the equivalent of a death sentence for which any person could be the executioner. Needless to say, in a libertarian society today we can surmise that there would be a more sophisticated version of this process, with private recovery agencies contracted to seek the recapture of fugitives, and with the use of the internet to disseminate information concerning known criminals and absconders.

How, then, would ostracism be used to combat abuse against children under the assumption that a child has no legal rights and, therefore, the offender has not technically committed any crime? The answer to this is that in a free society, courts and adjudicators are private companies and citizens too and they have the right to withdraw their services and refuse their business with any party they choose. Thus, their withdrawal of services for the benefit of any person could theoretically be made at any time and not just when someone flees from justice. Normally, of course, they would not do this as they would be turning away good business from genuine clients and they need to maintain a reputation of hearing all cases impartially. But when it comes to fleeing offenders against whom judgment has already been pronounced, the refusal to support these fugitives with legal help would most likely enhance, not impair, their reputational prestige and so they would not risk losing business to other courts and adjudicatory services. But there is no reason to say that a strict framework for withdrawing legal services from and thus ostracising a child killer or abuser could not be developed, in spite of the fact that a child may not have any formally recognised, legal rights. Indeed, when child abuse is viewed as a heinously immoral act by a majority of the population, such a framework may also serve to enhance and not impair the reputation of the court.

Thus, as I said in the original essay, there is nothing to stop a profitable or charitable entity from bringing a case of child abuse before a court, the court accepting this business and agreeing to hear the case as if the child had legal rights. In this role it could act as either an adjudicator or as an arbitrator or conciliator. Therefore, if the facts are sufficient to establish beyond reasonable doubt that the offender abused or killed a child, the initial focus would be, just as in a legal case, achieving an outcome agreed by both parties with the precise remedies determined by them. If, on the other hand, the offending party absconds then the court would simply pronounce its refusal to protect the offender in a future case until he sufficiently accounts for the act he committed. Thus it is quite open for courts and their customers to achieve the same outcome as a legal trial – and to ensure children protection from murderers and abusers – without ascribing to children the formality of legal rights.

Wrapping all of this up, therefore, hopefully what I have demonstrated is that a coherent and impregnable libertarian political philosophy is dependent upon identifying rights holders as rational actors and not by some other criterion. At the same time however, I have demonstrated at least two ways – the transmutation of these political norms into legal norms and the imposition of ostracism by the court – in which the protection of children from abuse can be achieved in a libertarian society without compromising or distorting the underlying political philosophy.

Finally, looking more widely at just the “utility” of a system of justice in producing a civil society, any denial of formal, legal rights to children does not undermine this. First, justice is demanded by individuals from other individuals who actions produce conflicts. It is not demanded by “society” or any other collective entity perceiving a conflict somewhere “over there” between an individual or a group and some other object or being. A civil society results because it is conflicts between individuals that are resolved peacefully. It is a mistake to think that “society” seeks justice to protect individuals. Rather, individuals seek justice between themselves and the result is a civil society. Second, the commentator to my original essay extensively criticised my approach as lacking an understanding of subtlety or nuance and unable to comprehend varying shades of grey. Yet it is precisely the recognition that children are different from adults upon which this approach is based. It is clear that adults, although they are wont to co-operate socially under the division of labour and although explicit cases of private murder and theft are consigned to a handful of nutcases and sociopaths, have an extensive capacity and desire to plunder and kill each other through faux legitimised outlets such as democratic government. Indeed, the state exists for no other purpose. On the other hand, adults also have the capacity to appeal for their rights and to demand justice. The aim of the libertarian project is to disseminate an understanding of these rights so that these adults will demand them and cast off the yoke of the state. Thus a system of legal rights and obligations between adults has an eminent utility in producing a civil society that is peaceful and harmonious. When it comes to children, however, whatever happens to them they do not, until they are older, have the capacity to advocate their legal rights. A civil society will not be achieved by reading Rothbard to babies. On the other hand, it is precisely because of the unique connection that adults have to their own children and to the children of others that the capacity for adults for harming children is greatly diminished compared to their capacity to harm each other. As I said in the original essay, even the most oppressive of governments, however much it may revel in plundering and killing its adult citizenry, is not likely to legalise the abuse of children by either its own elite or by the populace at large. Indeed, any political regime that does murder children is usually slaughtering men, women and children indiscriminately. Thus, affronts against children are truly confined to a bare handful of aberrations to the norm such as perverts and paedophiles. Faced with such overwhelming odds – indeed, a deluge – it is eminently possible and, indeed, likely that extra-legal methods of deterrence, detection, and punishment of abuse against children will be sufficient to handle this tiny minority – particularly if those methods included the voluntary withdrawal of support to the perpetrator of adjudicatory and private defence services as I described earlier.

Indeed, I would like to close by saying that as libertarians we should remember that the legitimised use of force is the way of our ultimate foe the state, and in defining our own solutions to problems we should have a presumption of restriction against its imposition. This is true even in apparently obvious cases which may not, upon greater examination, be quite so obvious – as I hope I have demonstrated here when considering the rights of children.

Children and Abortion – Hard Cases for Libertarians

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The rights to self-ownership and private property that libertarians espouse quite clearly and undeniably apply to typical adult human beings. Conceivably they are, however, much more difficult to apply to children, who may not have developed full-fledged adult characteristics, and to foetuses which possibly do not even possess any consciousness, let alone a rational one. How, therefore, do libertarians approach the rights of these beings? Do they have more or fewer rights than adult human beings? Indeed, is it possible say that they have any rights whatsoever

At the outset, readers should not expect some grand, new libertarian theory to emerge from the words that follow. The difficulty that libertarians face when attempting to apply any libertarian rights to children and to foetuses is that, on the one hand, the non-aggression principle applies only to rational beings that consciously, rather than instinctively, choose means to devote towards ends. If it did not, then all sorts of creatures and, indeed, dead objects would acquire the status of rights holder and this would clearly be absurd. Thus applying the concept of self-ownership to foetuses and, at least, very young children, becomes immensely difficult without ascribing such ownership to non-human animals and objects. On the other hand, however, there is the need to demonstrate that a libertarian world would not be one in which wanton abortion and child slaughter were commonplace as if nobody cared about these issues. The resulting torturous reasoning produces a mishmash of different and often novel approaches to the question, which would probably be more than sufficient to fuel a cottage industry of scholars churning out PhDs on the matter. Space precludes us from examining these approaches here in any detail. Rather, what we shall attempt is a simple, straightforward and uncomplicated application of libertarian principles to children and to foetuses. While the results of these deliberations may at times appear to be unfavourable and, indeed, shocking, let us embrace the implications of this approach and further attempt to find possible solutions to the problem not within the application of legal rights to children and foetuses but, rather, within extra-legal measures.

The Nature of the Problem of Children’s Rights

To begin, we must espouse a definitive characterisation of the problem before us in order to understand its real nature. Hypothethical problems, although they may be very interesting to the pure theorist, do not concern the real application of rights and obligations, which arise only when there is an acknowledged conflict resulting from scarcity. There is, therefore, strictly speaking no legal problem at all unless such a conflict arises in real life. Nobody invokes legal rights over particles of air because particles of air are not scarce goods and because there is a sufficient quantity of them for everyone to meet their needs. We could also conjure up all kinds of hypothetical situations such as whether a person who possesses a miracle cure for cancer can be forcibly dispossessed of that property, or whether a person with knowledge of an imminent and otherwise unstoppable terrorist atrocity can be tortured. The specific facts of such situations can be twisted and distorted by their proponents in order to provoke a particular answer. Real rights, however, are only defined where people actually need them to be so, and where the protection of a legitimate, physical defence is required. With children and foetuses, the specific, potential problem is that of physical incursions into their bodily space. This could be to inflict either injury or death, or for purposes of sexual gratification, for example. The initial requirement for a breach of the non-aggression principle is therefore satisfied – there is a physical invasion into the person or property of another being. Such acts are, to most people, a moral abomination, characterised as evil and/or perverted behaviour that should not be tolerated in any society. Yet it is precisely because of this fact that we must acknowledge that there is no widespread problem of physical affronts against children and foetuses, at least to the extent that it is not the most pertinent question that libertarians have to face. Taxation, regulation, the welfare-warfare state and all of the looting, plunder and murder that take place under the aegis of government are all contrary to libertarian ethics; yet these issues, which represent the greatest and most widespread incursions to liberty do not receive the widespread condemnation that they deserve – hence it is why libertarian scholars concentrate on these egregious issues. Libertarianism does not, therefore, necessarily stand or fall on its ability to define, neatly, the rights of children and foetuses. For even the most oppressive governments, which would seldom think twice about imposing a burdensome and oppressive tax, are highly unlikely, for example, to legislate to permit bureaucrats to molest children. Indeed, those from within their ranks who do so are quickly condemned and ejected from their positions of privilege, and will most likely end up in a prison cell. Even the number of abortions is dwarfed by the number of successful births, and has been declining in the United States since a peak in the early nineties.  Nothing about libertarianism’s ability to handle the relatively small number of cases involving incursions into the physical space of children and foetuses has any bearing upon its ability to handle the very real and very widespread incursions into the liberty of adults that take place every second of every minute of every day. By adopting this stance, we can therefore take a more open-minded attitude towards the issue of children and foetuses without feeling the need to cram ourselves into an awkward corner by compromising our libertarian principles in order to provide a solution.

Rights and Obligations

Rights and obligations, then, arise between rational beings – that is, those beings who make conscious and rational choices to devote means towards ends. This is because the advocacy of one’s rights is itself a rational choice to devote means towards ends. For all we know rocks, through some as yet undiscovered ability, may possess thoughts in the manner of a person to whom we might ascribe rights. Yet the absence of any rational action on the part of rocks prevents any advocacy of these rights on their behalf. Humans cannot exist without acting in relation to the matter around them, and a cardinal rule of moral philosophy is that a moral action requires a moral choice – in other words a person must be able to do that which is moral. Requiring the refusal of action in relation to all of the matter around oneself simply because it might possess as yet undiscovered qualities which would accord it rights would simply be a moral travesty. Similarly, in the natural world, antelopes do not invoke any rights against cheetahs when the latter attempt to slaughter them for food because antelopes are not rational beings that consciously choose means to devote towards ends. The “High Court of the Democratic Republic of Antelopes” does not convene to pass resolutions against the “Empire of the Cheetahs” for its atrocities against antelope civilisation because these animals do not possess the capacity for forming any of these concepts.

The problem faced with the rights of children is that children too lack this rational capacity to make choices to devote ends towards means. Consequently, they have no one to advocate any rights they might have. As they grow up, of course, they will, in all but a handful of cases, develop that capacity but at the particular moment in time under consideration they are not in possession of it. It is difficult, therefore, to ascribe any kind of rights whatsoever to children and, a fortiori, to foetuses. One could suggest that a child’s parents possess these rights on the child’s behalf. However, the majority of abuse cases against children occur within the family or by people or institutions that have legal care or custody of the child such as orphanages or, notoriously, the church. And, of course, an abortion, the deliberate killing of the foetus, nearly always results as the direct choice of the woman carrying.

Are we, therefore, stuck in a complete quandary? Will children in a libertarian world have no rights whatsoever and be fair game for murderers, paedophiles and other sadists? The response to this possibility is that simply because it is impossible to ascribe to children the formal, legal rights enjoyed by adults, we have to remember that legal solutions – that is, the legitimate imposition of force to invoke an end – are not necessarily the only or the most appropriate method of accomplishing an objective. Indeed, as libertarians, we should retain a great reluctance to ascribe legal rights too readily as the use of force is, of course, the mantra of the state.

The case of animals – which, in spite of some legislation against animal cruelty, do not possess any rights in our world today – actually provides us with a basis on which to construct a theory of how children will be treated in a libertarian society. Humans wantonly exterminate only those animals that are either harmful or pestering to them such as rats, mosquitoes, wasps and snakes – although some people even prefer to keep and breed the latter. A far greater number of animals are simply do not cared about by humans; they furnish neither a benefit nor a burden to human existence and so it does not really matter whether these creatures continue to exist or not. To the extent they do not interfere with humans’ accomplishments they will simply be left alone to live as they please. Above this level there are animals whose existence provides a great benefit to humans such as cows, chickens, pigs, and sheep. Some of these animals will be slaughtered to provide food, and sometimes “inhumanely” because humans believe that the resulting meat product is better than it otherwise would be. Many of them also will be cultivated to provide non-food products such as wool. At the top of the tree are those animals to whom humans form an emotional bond and whose happiness may be a cause of our own happiness, such as cats and dogs, in addition to animals used for sporting interests such as thoroughbred race horses. These animals will not, in the main, be killed, harmed or otherwise mistreated as they are more valuable when they are happy and well cared for. Indeed, there are a great many people who value the happiness of not only their own animals but also those who belong to, or are in the ward of, other people. Such outfits as the Royal Society for the Prevention of Cruelty to Animals are a testament to the fact that the health and wellbeing of certain animals has a widespread concern. There is a keen interest to prevent those few people who do inflict a life of misery and distress on animals from continuing to do so. Indeed, this might extend beyond pets and to all those animals that are used for any human purpose whatsoever. Hence one could, in a libertarian society, prefer to eat a vegetarian diet; or to refuse to purchase cosmetics or medicinal products that have been tested on animals.

If humans take such a strong attitude towards relatively innocuous yet friendly animals, then how much more so will they take this attitude towards children? Indeed, the overwhelming instinct in the typical human is to love and adore his/her offspring, and many of us can testify from anecdotal experience that even the most child-unfriendly of people have their maternal or paternal instincts kicked into gear as soon as they happen to procreate. No doubt there is some important evolutionary reason for this – a species that destroyed or consumed its own offspring would quickly be relegated to extinction. But regardless of the reason, we can be sure that a great many people will have these feelings not only for their own children but also for the children of others – and will be keenly desirous to prevent any cruelty or mistreatment to the children of others, viewing the perpetrators as monsters. How this will serve to prevent and punish the mistreatment of children, or to reduce and control abortion, we will now explore below.

Abortion

At the outset of the discussion of abortion, whatever the legal rights and obligations that ensue, we must admit one, incontestable fact – that abortion, even if it is an abominable, moral outrage will never be eradicated entirely. We can imagine a world where the murder and rape of adults will, one day, be utterly banished from a libertarian society, even if such an aim is a little utopian. This is because these aims would be accomplished by existing adults attempting to enforce their rights. Attempting to quash abortion, on the other hand, could only be achieved by breaching the rights of an existing adult, much akin to the attempt to prohibit drugs, alcohol and prostitution. You would quite literally need to spy on a woman in order to ensure that she was not carrying out an abortion. Indeed, at its most crude, desperate abortions can be carried out in a bath tub with pain killers, alcohol and a wire coat hanger. Nothing short of setting up cameras in a woman’s bedroom to see if she is having sexual intercourse and then following her around everywhere to see if she aborts any resulting pregnancy would serve to totally banish abortion from society – and even that is assuming such methods could not be evaded. One need only imagine the entire bureaucracy and government machinery that devastates our liberty through its devotion to the war on terror being redirected to carry out a war on abortion. This impossibility of eradicating abortion, however noble we may believe the cause to be, must be borne in mind when we are discussing any possible response to the issue.

Having established this, we can now state that at the moment of conception, the matter which then constitutes a growing foetus has no legal rights whatsoever. In the first instance, the woman is entitled to regard the foetus as either a part of her body or an invasion of it. In either case she retains every legal right to expel the foetus from her body, regardless of consequences to the foetus. In other words, she may abort the pregnancy. Even such apparently brutal procedures as partial-birth abortion would be legally permitted in a libertarian society. Further, given our approach to children that we will explore below, the question of the viability of the foetus outside the womb would also be irrelevant as even a viable child would not possess any legal rights. How then, might abortion be reduced or controlled by those who deem it a moral affront in a libertarian society?

First, in a straightforward case of abortion in a marriage, the woman could have consented to the variance of her right to an abortion through the marriage contract, to the extent that it has any force in law. Such contracts may require the woman to agree that no foetus resulting from intercourse in the marriage will be aborted. Or, at the very least, they may specify that alternatives to abortion are exhausted first. Second, anyone who objects to abortion has no obligation to support or work for any person, institution or entity that either has had an abortion or participates in the act of abortions. Doctors and medical services are quite free to practice whichever particular medical ethics appeal to their customers. If surgeries and hospitals believe that a refusal to participate in abortions and the exclusion of such services from offer will attract a greater number of anti-abortion customers then they are free to do so. Indeed, if abortion is such a strongly felt issue then even property covenants in certain regions could require house buyers to promise that they never would seek, nor never have sought, an abortion. This would allow anti-abortionists to live in whole communities where abortion is non-existent. Third, anyone who objects to abortion is quite able to set up a charitable or even a profitable entity that will seek to support women in exhausting every other option before an abortion is sought. Indeed, in a free society, entities that provide a marketplace for adopted children would seek to find an alternative home for the child instead of aborting its life during pregnancy. As we stated above, as humans are conditioned to care for not only their children but also the children of other people it is likely that there will be a great many people who wish to adopt children. We will explore the implications of adoption and exchanging children between parents below. Fourth, excluding cases of rape, a plethora of unwanted pregnancies are the result of a wanton sexual liberalisation and a destruction of the family that has been wrought by the welfare state. As we have argued elsewhere, the removal of the government and the welfare state would likely to lead to a fairly conservative (with a small “c”) society where children were desired as a product of the marriage bed rather than as an accident of a brief fling, or in response to false financial incentives furnished by the government. All of these are, in sum, aspects that would serve to contract the number of abortions in a free society.

One possible objection to this line of thinking, particularly by those who ascribe rights to foetuses, is that it leaves the fate of the latter to the whim of the population at large – in other words, to whether or not people deem foetuses worthy of protection or whether they simply don’t care. However, this is also the case of the control of abortion under the government. Governments are elected by their adult voters and they will only seek to control abortion, probably through a one size fits all measure, if they happen to believe that a significant number of the population wish abortion to be so controlled. Indeed, abortion is only a political issue in the United States precisely because it is seen as a vote winner. Ultimately, the fate of foetuses is no better off under government than it would in a free society, and indeed it may be far worse off if the government permits unrestricted abortions even in the face of much popular resistance.

Children

Having discussed abortion we are now in a position to turn to the question of the rights of children. These too, we must conclude, possess no rights whatsoever as they currently lack the quality of rational action which is the essential requirement for any being that benefits from rights. Being dispossessed of the right of self-ownership, it follows from this that the baby is, quite literally, the property of its parents as the homesteaders of the child, specifically the mother. The parents may, to all intents and purposes, presently treat the child as their property and enjoy full legal rights of ownership over it that any property holder would over some other good. It is also follows that the parents are responsible for all actions of the child that may physically invade the person or property of other adults, just as they would be if an inanimate piece of their property did the same. Without discussing this further for the moment, the important question raised is precisely when the child should be regarded as a self-owning being and therefore a beneficiary of all the rights of being a self-owner and the right to own private property, together with, of equal importance, the burden of the obligation to adhere to the non-aggression principle and become responsible for its own actions. Governments currently answer this issue in an arbitrary manner, usually having a series of one-size-fits-all milestones in which a child is legally permitted to be regarded as an adult. Hence, one may be able to drive a vehicle at sixteen; to consent to sexual intercourse sex at eighteen; to vote also at eighteen; to drink alcohol at twenty-one. The fact that these precise ages differ between jurisdictions demonstrates that they are nothing short of arbitrary. The age of sexual consent varies between twelve and eighteen, an enormous difference when expressed as a percentage of the latter. No doubt some of these ages will be influenced by culture or religion but it seems absurd to suggest that a Brazilian child can decide sexual matters for itself at fourteen whereas a Californian child must wait until the age of eighteen. Indeed, the entire approach of specific cut offs is entirely question begging. A person cannot carry out adult actions because he is a child – but what is a child? Simply, a person who cannot carry out adult actions. A person is classified as a child because he does not possess the capacity to make decisions rationally, as opposed to instinctively, to devote means towards end. It follows, therefore, that when a child does attempt to carry out such an action, it represents at least an aspiration towards adulthood and indicates that he is crossing over from the realm of childhood. To simply ban these actions because a person is a “child” is therefore nonsensical and indeed, simply produces in and of itself the very effect of a perpetuated childhood. In a free society, different children will reach different milestones at different ages, when they themselves see fit to accomplish them. Hence, one child may decide to get a job at thirteen, another at fifteen and a third at eighteen. One may decide he is mature enough to give sexual consent at fourteen, another at sixteen and another not until he is twenty. The choice to leave home may be made at a similar array of ages. In the event of a dispute between an adult and a child a libertarian court will have to decide on a case by case basis whether the action of the child that is the subject of the litigation represented a rational action to devote means towards ends or was simply an instinctive action. If it was the former then the child may be considered as an adult and all of the rights and obligations pertaining to adulthood will be on the shoulders of that child.

In response to the objection that such an approach may expose children to all manner of wanton temptations and attractions that may lead him/her down false or dangerous paths we should remember that it is government’s attempts to “protect” children that has served to artificially extend childhood for too long. Children are, these days, incarcerated in schools for what may amount to a quarter of their lives, and must endure the mind numbing boredom of tedious lessons in subjects in which they have little interest, dictated by the state’s approved benefactors of “learning”. Indeed, by making it excruciatingly difficult for children to find jobs or to move away from their parents in order to manage their own lives – in other words, to behave like an adult – merely encourages rebelliousness and the profound urge to express some kind of individual identity. One may suggest that the advent of the teenager as an distinct social, cultural and economic force appeared as a consequence of this repression, but it is also of little surprise that many such teenagers, as a result of this enforced prolongation of childhood, turn to delinquency and drug taking in order to provide at least some kind of interest in the lives they have to live. Would it not be far better to at least allow them the choice to take responsibility for their own lives at a time when they feel it is right? To have to earn their own income? To have to manage their own expenses? To have to find their own place to live? To have to wash their own clothes and cook their own food? Surely this would encourage more of the qualities of responsibility and hard work that we wish to see in our children rather than forcing them to sit through endless school. It should also be remembered, of course, that children once had to labour from even a very young age simply because if it were otherwise they would have starved. Today, we have the wealth available to ensure that this is not so. But there is no reason to prevent a child from working, earning a wage and looking after its own life should it wish to do so.

Returning now to the assertion that parents own their children, does this mean that parents could legally kill, beat, or sexually abuse their children? Most such cases are, as we mentioned above, perpetrated by a family member or a person who is close to the child. If the act is carried out by a non-owner of the child, then this is simply regarded as an affront against the property of the parent and the parent will retain all rights to sue the perpetrator in court – and, indeed, is likely to do so on the understanding that parents generally love their children more than any other people in their lives. When the act is carried out by a parent-owner, however, matters are a little different. After all, a cardinal rule of private property is that the owner has power of disposal over his property – in short, he can do what he likes with it. Let us explore the implications of this possibility and suggest ways in which the ownership of children by their parents would prevent the latter from abusing their children. In doing so, we must recall the fact that child abuse is a rare occurrence and that the vast majority of people love their children and wish to raise them well – even more so in a free society where there are no government induced financial incentives to breed. Further, as we suggested earlier, people also care about the welfare of children other than their own and would regard child abusers and killers as heinously immoral. In short, the key to controlling any abuse possible takes place not within the sanction of the law but within the general morality as to what people should and should not do with their property. Children, being a specific type of property, will be held in this general morality to require different treatment from mere objects that people may decide to do whatever they like with. It is this powerful force that will serve to diminish child abuse to all but the rarest of cases.

In elaborating this, we have to consider the likelihood that the lack of formal, legal rights of a child may not make much of a difference of outcome for the perpetrator. A libertarian society will not be one that is populated with government prisons funded by the taxpayer to permit inmates to enjoy a relatively comfortable, if restricted, lifestyle. Traditionally, punishments for breach of legal rights consisted of restitution – the forced removal of stolen property from the perpetrator – but also ostracism of the perpetrator from society. Ostracism was once a very powerful disincentive to commit crime, and would be even more so in a society marked by the division of labour where we all depend upon everyone else for the goods and services we desire. Having all or even most of the services provided to us by everyone else cut off would utterly devastating to anybody’s life. Imagine no bank wanting to take your money; no employer wanting to hire you; no landlord prepared to rent you a flat; no shop prepared to let you in to buy what you need. The effectiveness of ostracism can be underestimated in a society such as ours today in which moral relativism and degradation has pervaded to the extent that not only are such heinous abuses perpetrated more widely in the first place but the perpetrators would find sympathisers and active encouragers who would provide a nullification of ostracism. This is not likely to be so in the context of the stronger moral backbone that permeates a libertarian society and even for the family and friends of a perpetrator it may be a great shame to be seen to be supporting and aiding the latter. Normal crimes against adults will be countered by the sanction of courts that have determined the formal legal rights of the parties and would justify the use of force in extracting restitution. But there is no force whatsoever required in the imposition of ostracism and there need to be no legal blessing in order to ostracise someone. Therefore, simply because a strictly legal sanction is unavailable does not mean, in a case where abuse is sufficiently evidenced, that any person or institution that it is set up to prevent child abuse cannot actively publish this information, informing both the perpetrator’s friends, relatives, employers and suppliers of its occurrence and nature. Indeed, the most likely outcome is that such institutions will pay courts to adjudicate cases of child abuse as if the child possessed legal rights. The judgment would have no strictly legal standing but it would lend the prestige of impartial judgment by a reputable party to the facts and evidence of a particular case of abuse.

It is not necessary, for the purposes of this essay, to examine the details of precisely how ostracism would work, such a matter being more appropriate for an espousal of libertarian punishment theory. All we need to bear in mind here is that the de facto outcome to a perpetrator of physical abuse against a child is likely to be pretty much the same as a formal, legal judgment against a person who invaded the person or property of an adult. However, it is also likely that such a range of conditions may be demanded of the abusive parent before he/she is excluded entirely from mainstream society, such as either a regular monitoring of his/her behaviour with the child, or offering the child for adoption. In addition, where the case consists of one of abuse as opposed to murder the perpetrator bears the risk of the child himself revealing the abuse publically when he/she is older and a self-owner. Again, no strictly legal redress would be possible but ostracism may still result if the case was sufficiently evidenced. In any case, the abusive parent must always confront the possibility that the child will begin to assert his rights as a self-owner, and will leave the realm of being owned by his parents and will begin to own himself. In this instance, the adult would be liable for any invasive acts beyond the point where the child begins to assert his identity as a self-owner. Demonstration of self-ownership is likely to be encouraged by charitable and profitable institutions that are set up to actively detect cases of abuse, perhaps in partnership with schools and clubs where children frequent in order to create an awareness of the possibility of abuse and the fact that the child should not have to put up with it. Courts may rule that even evidence of acts of self-defence by the child are sufficient to qualify as self-ownership and thus render the perpetrating adult guilty of a physical invasion. Nevertheless this is likely to be a minor route compared to the power of ostracism encouraged by those charitable and profitable institutions that are set up to promote the strongly felt morality of preventing the abuse of children.

It should be clear from all of this that disciplinary acts such as spanking and other mild physical chastisements will be perfectly legal in a libertarian society. Opinion differs on whether such methods are appropriate for child rearing and some hard liners may choose to ostracise those who discipline their children in such ways, and that is their legitimate choice. Ultimately, each individual must decide for himself which levels of physical discipline constitute acceptable punishment for a child and which constitute abuse that is worthy of ostracism. What we can certainly see, however, is that a libertarian society will not be one in which children are ascribed full legal rights – which would result in an adult not being able to give a child a slap on the wrist for naughty behaviour – but neither is it one where, lacking such rights, there will be wantonly permitted child abuse. Rather it is the uniquely cherished morality of caring for and loving children that will ensure such perpetrators risk detection at every corner.

Finally, given that children are not the legal owners of themselves then there is no reason why they should not be exchanged for money between the birth parents and adoptive parents, with an adoption agency taking a small commission for its services. Two possible concerns surrounding the “trade” of children for money is that children may be bred specifically for exchange by cash-strapped parents, and may be “bought” by those who simply wish to abuse them. In response to the first concern, we must remember that outlawing monetary exchange of a given good, whether it be children, donor organs, sexual services, or whatever, does not make the underlying demands of each party vanish. It simply makes it more difficult for them to be fulfilled. If exchanging children for money is outlawed there will still be hordes of eager, childless couples who wish to adopt a child, sometimes desperately so. But the lack of monetary payment simply means that there is no willing supply. People will be less happy and less fulfilled because the government has banned them from pursuing a perfectly peaceful course of action. In any case, would it be so bad if parents conceived a child simply to offer it for sale to adoptive parents? A new life would be born into the world and would immediately find a warm and loving upbringing with people who wish to nurture and care for it. Surely that is an exceedingly good thing? Indeed, this is precisely what is achieved already with surrogacy arrangements on behalf of couples who cannot otherwise conceive a child on their own. In answer to the second concern, adoption agencies themselves would be keen to place children in the care of loving, not abusive, adoptive parents. It would suffer losses and drive away customers if it was to gain a reputation for carelessly placing children in the care of bad parents. Furthermore, it is in fact prevention of the monetary exchange the children that concentrates them in abusive homes, or homes where they cannot be cared for sufficiently. If the birth parents are abusive or negligent, or even just struggling to make ends meet with the number of children they have, prospective adoptive parents can bid to purchase those children and take them away to a better upbringing. No such solution exists if trade in children is outlawed and the children would be stuck in their situations. Moreover, as we mentioned earlier, the ability to offer a child for sale may result in the a decline in the number of abortions.

Conclusion

We must end this survey by reiterating that the problem of the rights of children and foetuses is not likely to be a pressing issue in a free society, nor, it is submitted, is the question the most important for libertarian theory. The very real problem for libertarians is the widespread and accepted incursion into the rights of adults and children alike the across the world by their governments and it is this that represents the gravest threat to liberty and prosperity. Libertarian theory is not, therefore, dependent upon its ability to ascribe legal rights to children and foetuses. Hopefully we have demonstrated here that powerful moral forces exist to protect children from harm and to promote their safe, warm and loving upbringing. There is, therefore, a strong case to be made for the assertion that libertarians should not spend intellectual labour on developing legal rights for children and risk compromising sound theory in order to do so. Rather, we should perhaps concentrate on bringing about a world in which these powerful moral forces have the freedom to protect children and foetuses without interference.

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Utilitarian Arguments for Liberty

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Utilitarianism or some form of consequentialism has underpinned the ethical worldview of many libertarians past and present. Within the “Austrian” School we may cite Ludwig von Mises, F A Hayek and Henry Hazlitt as proponents of this approach, contrasting with the more rule-based or deontological approaches of, say, Murray N Rothbard and Hans Hermann Hoppe, and the objectivism of Ayn Rand.

This essay will seek to examine some utilitarian and consequentialist arguments in favour of liberty. In doing so we must bear in mind two aspects. First, not all utilitarian arguments are of the same ilk and vary from simple approaches of judging outputs resulting from a posited situation with interpersonal utility comparisons, all the way to more general and sophisticated treatments such as that of Mises and that of Rothbard in his noted article “Towards a Reconstruction of Utility and Welfare Economics”1. Here, therefore, we will compare these two utilitarian approaches towards liberty. Second, the adequacy of utilitarianism can be examined from the point of view of providing a moral bulwark for a world of liberty on the one hand and from the point of view of promoting such a world on the other; our treatment of it may be different in each circumstance because that which may be suitable to form the moral foundations of liberty may be not be the key aspect that we can emphasise when persuading the populace of the virtues of a libertarian society. Hence we must examine any utilitarian argument from both points of view.

We will begin, then, with the basic forms of consequentialism that look to measure the output of individual scenarios. Such an approach will often posit an emotive and hypothetical situation where one individual owns property and another individual will succumb to some kind of malady such as hunger, illness and ultimately death unless he gets his hands on that same property. A typical example is of a lost man wandering in the woods, cold, malnourished and in immediate need of food and shelter. He comes across a log cabin, of which someone else is clearly the first user/occupier. By peering through the window our lost man can see that it is full of food. Would it be ethical for him to break in to the cabin, use it as shelter, and/or eat some of the food without the permission of the first user?2

The rule-based approach to libertarianism would state that the lost man does not have a right to break into the cabin, use it as shelter and eat the food without the permission of the cabin’s first user (hereafter, the “owner”) as it is a clear breach of the non-aggression principle. However, a utilitarian or consequentialist may argue that while the cabin owner has a prima facie right to the ownership of the cabin and its contents the question should be answered by taking the approach that avoids the most harmful consequences – or, conversely, promotes the best consequences. In this particular situation, the loss of the food or shelter to the cabin’s owner would, apparently, not be a remarkable cost. Yet the denial of it to the lost man, starving and shivering in the open, would be tremendous, may be even as much as his life. We may warrant, therefore, that the starving man should be able to break into the cabin.

Is it possible for such a view to form a) the moral backbone for libertarianism and b) a persuasive argument in promoting a libertarian society? In answer to the first question, we must decide firmly in the negative. First, all of these scenarios, such as the starving man in the woods, are purely hypothetical situations to which we are expected to give hypothetical responses. However, ethical dilemmas do not arise in hypothetical situations; they arise in real situations where there are genuine conflicts over scarcity. Although such hypothetical situations could one day come about, the danger of entertaining them is that it can be worded in such a way as to provoke the answer most desirable to its proponent. Thus the die is already loaded in favour of the latter’s political philosophy. Walter Block comments on such an example provided by Harold Demsetz of the Law and Economics movement (which is basically a utilitarian approach to legal rights). Demsetz’s scenario is that of “Austrian Pure Snow Trees”, which are owned by a religious sect. An ingredient from these trees happens to be the only cure for cancer, but the religious sect will not allow them to be used for that purpose, reserving them instead for religious worship. Demsetz challenges whether it is really “evil and vicious” to override the private property rights of the religious sect so that cancer sufferers can benefit from the trees’ curative ingredient. Block responds at length:

Given [Demsetz’s] highly emotional example, it is indeed hard to resist the notion that it would be preferable if the trees were used as a cancer cure.

Emotionalism can be a double edged sword, however. As long as our intuitive imagination has been unleashed by Demsetz in this creative way, why not push the envelope a bit? Consider, then, the case where the views of this religious sect are absolutely correct! That is, if the trees are torn down for so idolatrous and unimportant a purpose as curing cancer, then we’ll all be consigned to Hell forever. Wouldn’t it then be “intuitively appealing” to allow the islanders to continue their ownership of these trees?

Demsetz, in taking the opposite position, is acting as if the cult is erroneous in its religious beliefs. But assume for the moment the “cultists” to be correct in their world view. It would then be justified – according to Demsetz – not only to protect them from the onslaught of the cancer victims, but to seize the assets of the latter if this would in any way help the former. Suppose, that is, that there was a cancer cure, owned, now, by the victims of this dread disease, but that for some reason the worshippers determined that this material would help them in their efforts to contact the Deity. Then, according to the logic established by Demsetz, it would be appropriate public policy to forcibly transfer the cure to the control of the religious ”fanatics.” Surely Demsetz knows nothing-for certain that would render such a conclusion invalid.

[…]

Let us extend the Demsetzian argument in yet another dimension. Suppose that it was not the islanders’ trees that could cure cancer, but rather their hearts. That is, the only way to save the sufferers from this disease would be to kill, not the Austrian Pure Snow Trees, but their owners, the members of this religious sect, and then to take their hearts, chop them up, and feed them to cancer victims. Would Demsetz (“emotionally”) support this “modest proposal” to do just that?

[…]

Ultimately, there are only two ways of settling such problems. All others are merely combinations and permutations of these two. On the one hand, there is a provisional or instrumental property rights system. Here, holdings are secure only as long as no one can come up with a plausible reason for taking them away by force. Under this system, either dictators or majorities (or dictatorial majorities) hold the key to property rights. The difficulty is that there are no moral principles which can be adduced to derive any decisions. Presumably, utility or wealth or income maximization is the goal; but due to the utter impossibility of interpersonal comparisons of utility, this criterion reduces to arbitrariness. On the other hand is a thoroughgoing and secure property rights system. Here, one owns one’s possessions “for keeps.” The only problem here is the temptation to overthrow the system in order to achieve some vast gain, such as the cure for cancer. Demsetz’s example is so forceful by virtue of the fact that he expects his readers will consider a cure for cancer to be more valuable than a pagan rite – he knows it is likely they will engage in interpersonal comparisons of utility. But these temptations are easily resisted as they are inevitably imaginary and artificially constructed. We have yet to be presented with a real world example where there is a clear cut case for massive property rights violations.

[…]

Hypothetical arguments have their undoubted philosophical use. [However], the point being made here[…]is that [deontological] libertarian rules are only inconsistent with broad based utilitarian concerns in the imagination, not in reality.

Note how far from reality Demsetz must remove himself in order to manufacture an example that is intuitively consonant with his support for what in any other context would be considered murder (hearts) or theft (trees) or slavery-kidnapping (draft).

[…]

In very sharp contrast indeed, resort need not be made of fanciful examples to defend the libertarian vision.3

Imaginary scenarios, then, are always worded so that the listener is encouraged to empathise emotionally with the economically deprived while completely ignoring the point of view of the property owner, or at least making the latter look frivolous and capricious. Such a rhetorical trick applies not only to specific scenarios but also to entire political treatises. How much, for example, do the imaginary, hypothetical situations of the original position and the veil of ignorance in John Rawls A Theory of Justice – which do not exist in the real world – demand the very answer that the author desires?

Second, the purpose of ethics is to resolve or otherwise avoid conflicts that arise from the result of physical scarcity. Rule-based approaches to liberty that provide physical demarcations to denote property rights permit this to a high degree of certainty in any given situation as the boundaries of permissible action are constructed objectively. Because all valuations through action result in physical changes to physical goods, objective evidence of these changes – i.e. homesteading, production, etc. – give an immediate cue to indicate to a latecomer that the property may not be touched4. Consequentialist approaches, however, cannot rely on objective, physical demarcations to denote property rights; rather, they rely upon the measurement of competing subjective values. This renders the resolution of conflicts and conflict avoidance much more difficult. The question the lost man faces is what am I permitted to do right now? If moral boundaries are based upon hypothetical and changing values and tastes then this question cannot be answered. He may assume that the cabin owner values the cabin and its stock of food less than he does, but he has neither evidence nor proof of this. Indeed the cabin owner isn’t even there to ask. And whether the cabin owner values it less may change from day to day. Yesterday, the cabin owner might not have valued these resources very highly at all; today, however, what if the cabin owner has himself suffered an accident and requires the shelter and food, which he believes to be in secure possession, and is now under threat from the wanton consumption by the lost man? What if the cabin owner’s life is threatened by the loss of food and shelter? Indeed, what if he had purchased the cabin as insurance against that very possibility? There is, therefore, no way of making a rational decision ex ante.

Third, if ethical determinations cannot be made ex ante then it follows that a decision must be made ex post. In other words, the lost man could take a chance by breaking into the shelter and then battle out the question of whether he was right to have done so later through litigation or a settlement process. It is for this reason that utilitarian forms of libertarianism tend to be minarchical rather than anarchical. Hence, this basic form of utilitarianism provokes the very monolithic state apparatus that libertarians should be opposing, and puts in its hands a tool – interpersonal utility comparisons – with which to make its decisions, a tool that is ridiculously uncertain and malleable5. To be sure, it might be possible for individuals to form an empathetic judgment based on interpersonal utility comparisons in an individual situation. But it does not follow from that possibility that a government or a court could make a rigorous determination when passing legislation or enunciating judgments that affect the lives of millions of people in multitudes of different situations6.

Fourth, at the heart of many consequentialist approaches is a fundamental misunderstanding as to what the concepts of “liberty” and “freedom” actually mean. If one views them as meaning freedom from want, from hunger, from the elements and so on then one is naturally led to a consequentialist approach. However, properly considered, liberty is a sociological concept that applies to the relationship between each individual human being. A person is free if he can live his life without the physical interference of his person and property by others. Whether he is hungry, cold, or naked, on the other hand, concerns his relationship not with other human beings but, rather, with nature. This can only resolved not by extending his “freedom” forcibly into the territory of others but by gaining power over nature – in short, by productivity. Any number of theoreticians can spill oceans of ink in trying to determine whether or how the wealth of the cabin owner should be distributed to the lost man in the woods. Yet wouldn’t it be so much better if society was so wealthy that the lost man possessed the wherewithal to prevent himself from being in such a wandering state in the first place? What if the man had an inexpensive GPS system; compacted supplies of food in pill/tablet form that could sustain him for weeks or months; emergency communication devices that would alert a private protection agency to his whereabouts? Yet it is precisely such productivity that is threatened by consequentialist determinations of property rights. Strong private property rights that remain certain following original appropriation or voluntary transfer promote economic growth by encouraging saving, long term planning and low time preference. Uncertain or vague private property rights do the exact opposite. If it is possible that your property will be snaffled in an instant by someone who allegedly “values” it more than you do then the attractiveness of using the good for saving and investment is lowered. You will be willing to take fewer risks and will work less hard with the good if you know that the fruit of your efforts might be confiscated in the blinking of an eye. At worst, such weak property rights encourage immediate consumption as soon as you get your hands on any good at all. That way, in most cases it will no longer exist for someone to take it away again at a later date.

Turning now to our next question, would such basic consequentialism serve in any way to persuade people of the virtues of a libertarian society? Again we have to answer firmly in the negative. We must remember that the primary preoccupation of libertarianism is with the evil and oppressive monolith known as the state. This is the entity that truly destroys freedom; it confiscates our income to fund its profligate spending; forces us to use its worthless paper money that it prints incessantly to fuel its endless foreign wars; destroys families and fuels poverty and dependency with the massive welfare state; regulates what we can do with our bodies, what we can say with our own mouths, where we can set up business, whom we may employ in that business and on what terms. Government is estimated to have killed approximately 262 million people outside of warfare during the twentieth century; private affronts to liberty – even such horrendous crimes such as murder and rape – pale in comparison to this. The US government’s so-called war on terror, at a cost of several trillion dollars, has killed an estimated 1.3m Iraqis, Afghanistanians and Pakistanis in its first ten years, even though more Americans are killed by falling televisions than by terrorist attacks. The greatest insult has to be that it is this miniscule private crime that supposedly constitutes the very justification for the state and its monopolisation of security and litigation. Although there is no shortage of nobility in striving to apply justice in every individual case, libertarians must fry the biggest fish and not spend their time debating whether a lost man breaking into a cabin is or is not an affront to liberty. When attempting to promote liberty, let us confront the very real ogre of the state rather than dwelling in imaginary scenarios that will make no practical difference to people’s everyday lives. Furthermore, as we mentioned above, if justice depends on interpersonal utility comparisons in individual cases, then it craves for the existence of a compulsory referee in the form of the state, the very thing that destroys liberty entirely. We must conclude then that this basic form of utilitarianism, which seeks to evaluate outputs from specific situations, must fail on all accounts as an argument in favour of liberty.

Let us now turn towards a second conception of utilitarianism, the more sophisticated approach adopted by such eminent theoreticians as Ludwig von Mises. The tenor of this approach is that voluntary exchange under the division of labour – i.e. the market – is essential for the survival and flourishing of every individual human being; every human is so interdependent upon every other that to plump for anything else would result in the rapid disintegration of the standard of living or, at worst, certain death. Hence this form of utilitarianism concentrates on the virtues of the market itself rather than looking to the justice of individual situations. Mises, and others who follow this approach, therefore avoid any complications arising by way of interpersonal utility comparisons.

It is important to realise that this argument is predicated upon a few other important Misesian insights. First is that when pondering the economic organisation of society only two extremes are possible – the free market or total socialism. As Mises so effectively argued, any “interventionist” point or “mixed economy” approach in between these two extremes will cause effects that must either lead to abandonment of the intervention on the one hand or to total control on the other. One must therefore choose between one or the other and cannot favour anything in between. By demonstrating the economic impossibility and the catastrophic consequences of full socialism Mises demonstrates the complete lack of basis for making a choice that favours full government control. The only rational option, therefore, is the unfettered free market. Second, and related to this theme, Mises was of the view that “society” is synonymous with social co-operation under the division of labour. As he says in Human Action:

A society that chooses between capitalism and socialism does not choose between two social systems; it chooses between social cooperation and the disintegration of society. Socialism is not an alternative to capitalism; it is an alternative to any system under which men can live as human beings.7

Following this line of thinking, questions such as “how to organise society” strike one as absurd when society itself is already a form of organisation. We do not have the choice of “picking” from an array of options when it comes to forming a society. Either there is social co-operation under the division of labour and society exists; or there is an atomistic hand-to-mouth existence and society does not exist. Any person, therefore, who genuinely wishes to promote a theory of society cannot rationally opt for any kind of socialism and, a fortiori, any kind of interventionism8.

How useful is this approach for forming a moral backbone for libertarianism? At first, this approach seems remarkably more plausible than the basic form of consequentialism that we just discussed. By looking at the general consequences of the market we do not get caught up in traps such as interpersonal utility comparisons and we have a strong counter-argument against anyone who proposes a collectivist theory of social organisation. Moreover, the fact that the marketplace serves to improve the material wellbeing of every individual human being lends it a heavy degree of moral weight. If the free market was to spread misery and discontent through perpetuating a lower standard of living we would surely be willing to lend it less moral credence. Unfortunately, however, this utilitarian approach lacks the very thing to which the basic form of consequentialism was far too devoted – a rigorous passion for the justice rather than simply for the utility of private property rights.

First, although it provides a rhetorical defence against those who profess their collectivist aspirations to be for the benefit of society, it will never provide a defence against megalomaniacs who are content to milk everyone else for all they are worth. In other words, it will never provide an answer to those who believe society exists to serve them alone and that they are entitled to use other people in any way they see fit. The existence of such megalomania should not be dismissed lightly. Simply because we associate it more with caligulan monarchs and despots of times gone by does not mean to say that our democratic structures are impervious to it. Many libertarians are vocal opponents of what they see as “US exceptionalism” – the idea that the US government can pretty much do whatever it pleases in foreign affairs and standards that apply to a foreign government do not apply to the US. How can this be described as anything except megalomania?

Second, the logical effects of the socialisation of society – the total collapse of the division of labour and the complete decimation of the standard of living – can be gut wrenchingly long run effects. Society currently has plenty of capital that can be consumed and afford a comfortable, even luxurious living to any one individual. The Soviet Union took an agonising seventy years to die, a span of time that exceeds that of most individual’s adult lives. An advocate of socialism and socialisation is therefore not necessarily advocating his own certain death or relegation to poverty. He may be content to live like a king for the duration of his life and not care a whit if society became deeply impoverished long after he has dropped off of his mortal coil. Arguably this was the attitude inherent in Keynes’ oft-quoted quip “in the long run we are all dead”. As Murray Rothbard is supposed to have retorted, “Keynes died and we were left with the long run”. But such an attitude is provoked and enflamed by the fact that democratic government is a revolving door with officeholders required to endure repeated elections, endowing them a very short time in which to accomplish their goals. Every politician yearns for his day in the sun when he is lauded and praised as a great statesman, but he has to achieve this now, in the short run, before he loses an election. As long as he can reap the headlines and rewards during his tenure and, possibly, for the remainder of his life, who cares if his policies are ultimately destructive after he is long gone? It is for this reason that democratic governments are suffering from ever increasing and crippling debt as each generation of politicians seeks to shower its electorate with free goodies that only have to be paid for years after they have left office (or have died) and it is somebody else’s problem9. So too, could we suggest, that endless war has become the norm as each successive leader tries to demonstrate his Churchillian qualities and to elevate himself to the legendary, almost Godlike realms of the great warrior-statesman such as Lincoln and Roosevelt. Never mind that war ultimately is destructive; never mind that it destroys entire cities and societies; never mind that it kills, maims and otherwise ruins the lives of millions of innocent civilians. As long as the commander-in-chief can claim to have vanquished a cherry-picked foe in some distant country then his place as a saviour of civilisation is assured, at least in the meantime. So too do the manufacturers and profiteers of armaments display the same attitude. They know how evil and destructive war ultimately is; there is no shortage of literature espousing this fact. But they get to reap heavy profits now and to enhance their own lifestyles now. Why should they care about what happens in the long run?

Third, by resting its case on the general virtues of the market this kind of utilitarianism suggests that if some form of social organisation, other than the market, however unlikely, becomes feasible then private property rights could be legitimately overridden. In other words if some form of collectivism could sustain the division of labour and a standard of living equal to or exceeding that of the free market would the force behind government taxation, theft, murder then become legitimate? However, surely if such a world was to come about we would still argue that people have the right to self-ownership and the right to the ownership of goods in their possession as first user or through voluntary transfer? Of course, a person might choose to submit to the yoke of government planning if it affords him a higher standard of living than that of the free market, but this is a different kettle of fish as the submission is then purely voluntary. On its own, however, any ability of a system other than the free market to sustain a society is insufficient as a justification to override private property rights.

Fourth, this brand of utilitarianism may convey a sense of prospective justice – that which should happen concerning property rights in the future – but what does it have to say about retrospective justice? In short, how does utilitarianism know whether the existing structure of property rights is just? After all, the existing structure of ownership benefits a lot of thieves and plunderers that would need to be dealt with in the transition from a statist to a libertarian society. A libertarian steeped in natural law and Lockean homesteading theory would answer this question rather straightforwardly. Any current owner would have to demonstrate that his title derives either from original appropriation or through voluntary transfers in title. If it is not and someone who claims such a title comes forward then ownership must be yielded to the latter. A utilitarian, however, has a bit of a problem as his philosophy generally focuses on the benefit changes to the existing array of property titles to the current market participants. He could argue that, like the natural lawyer, all existing titles to property could be examined against competing claims and then either endorsed or rectified accordingly. However, because his theory is based on the efficacy of the market in developing the division of labour his case for requiring this is demonstrably weakened. Certainly theft and plunder disrupted the efficiency of the market in the past. However, wouldn’t a mass of re-appropriations to rectify ancient crimes undermine the efficacy of the market today, at least temporarily? Would it not be easier, from the point of view of efficiency, to just preserve all existing titles then let everyone go forward? Why compound a past disruption to the market with a new one? It is upon this basis that this brand of utilitarianism is criticised for preserving the status quo, for permitting, in the transmission to a libertarian world, the bureaucratic class to keep their hands on the loot, much like the oligarchy did in Eastern Europe after the collapse of the Soviet Union. To be sure, this argument against utilitarianism is not, in the view of the present author, as strong as some libertarians make it out to be. Nevertheless, utilitarianism does open itself up to the charge that there comes a point where stolen property should remain in the hands of the thieves (or their heirs) simply because the act of unwinding the theft would cause more disruption to the market than to not to do so, particularly if the property is heavily invested in an enterprise that provides substantial employment and is apparently productive. Moreover, while it is straightforward enough to justify voluntary trade in the marketplace as promoting the division of labour and the standard of living, we have to wonder whether the utilitarian can provide much of a justification for original appropriation – that is, for the first user of a good to retain it – with his utilitarian arguments alone. Original appropriation is of course the genesis of voluntary trade – we appropriate virgin goods with the intent to produce with them and trade them away for things we want in exchange, thus helping to overcome the fact that the world’s resources are not evenly distributed amongst different geographic regions. However, such a justification can only stand if one can also demonstrate that the originally appropriated property is previously ownerless and unvalued by other people, and is only recognised as scarce and valuable by the first user. The only possible such demonstration is that the first user was the one to “mix his labour with it”, whereas the actions of everyone else demonstrated no preference for that property. Hence all utilitarian arguments in favour of the free market, fundamentally, collapse into the Lockean homesteading theory anyway.

Having addressed the question of whether this form of utilitarianism can be a useful moral underpinning for libertarianism, let us turn now to whether it is useful as a persuasive tool for espousing the virtues of a free society. In this sphere, utilitarianism certainly fares much better. The heaviest gun in the arsenal of the utilitarian libertarian is the fact that living in an unfettered free society where government exists, at most, as a “night watchman”, limited to protecting private property rights of the individual, will produce manifold increases in the standard of living through a rise in real wage rates. It also has the virtue, in contrast to the basic form of consequentialism, of concentrating its focus on the very institution that is an anathema to freedom – the government – instead of getting bogged down in the minutiae of individual cases. Squarely, it is government that needs to withdraw itself from the marketplace and it is government that needs to stop meddling in economic affairs in order to bring about these wonderful consequences. Furthermore, every government minister promotes his programmes on the basis that they will serve to help at least some sector of society, if not everybody. The utilitarian, however, armed with a thorough understanding of economics, can easily demonstrate why the results must always be the very opposite of those intended and why the government interference will always, necessarily, create more harm than good when examined under the terms of its own justification. While, therefore, a given politician or promoter may have ulterior motives in proposing any programme – such as to benefit lobbyists, donors or other special interests – his public justification for the programme can be shown as shambolic. There may, of course, be some difficulty in disabusing people of the notion that the free market is a “sink-or-swim” society and there is also added problem of those who steadfastly refuse to try their hand in the marketplace for what might seem like a distant reward and prefer instead to yield to the siren song of government redistribution. To this, only a passionate plea for the justice of the market place can provide an answer.

Conclusion

George Reisman explains how an understanding of the consequences of free market economics has “powerful implications for ethics”:

It demonstrates exhaustively that in a division-of-labor, capitalist society, one man’s gain is not another man’s loss, that, indeed, it is actually other men’s gain — especially in the case of the building of great fortunes. In sum, economics demonstrates that the rational self-interests of all men are harmonious. In so doing, economics raises a leading voice against the traditional ethics of altruism and self-sacrifice. It presents society — a division-of-labor, capitalist society — not as an entity over and above the individual, to which he must sacrifice his interests, but as an indispensable means within which the individual can fulfill the ultimate ends of his own personal life and happiness.

A knowledge of economics is indispensable for anyone who seeks to understand his own place in the modern world and that of others. It is a powerful antidote to unfounded feelings of being the victim or perpetrator of “exploitation” and to all feelings of “alienation” based on the belief that the economic world is immoral, purposeless, or chaotic. Such unfounded feelings rest on an ignorance of economics.10

While, therefore, we must conclude that no form of utilitarianism provides an adequate, watertight moral backbone for libertarianism, which can only be furnished by demonstrating the justice inherent in private property rights and free exchange, we must also agree that we can never ignore the manifold benefits to every individual and the harmonious society that they create. Indeed, few people, publically, ever attempt to propose an ethical theory that does not create a society of peace and harmony. Thus a through understanding of the effects of the free market can provide a framework with which to refute competing theories on their own terms. Furthermore, few deontological libertarians omit to pepper their theories with demonstrations of the beneficial consequences of the marketplace. While, therefore, this essay has been generally critical of utilitarianism it is likely that it will always have a central place in libertarian theory.

1Reprinted in “Economic Controversies”, pp. 289-333. Rothbard is, however, keen to note that his reconstruction does not provide any plea for an ethical system, merely “conclusions to the framer of ethical judgments as part of the data for his ethical system”.

2Another example is the so-called runaway train that will hit five people if diverted onto one track or only one if diverted onto the second. Should the signalman switch the points to the second track to ensure that only the one person is killed?

3Walter Block, Ethics, Efficiency, Coasian Property Rights and Psychic Income: A Reply To Demsetz, The Review of Austrian Economics, Vol.8, No. 2 (1995) 61-125, at 76-84 (emphasis added, some footnotes omitted.

4Libertarian jurisprudence does, of course, have to determine precisely which physical acts result in which property rights. However, any difficulty is likely to remain only in borderline cases or cases where evidence of prior ownership is fleeting or difficult to apprehend and, in general, all persons should be able to determine in the majority of situations whether property is subject to a prior right and a third party referee would not be required to determine this.

5As a result it is also the case that consequentialists vary in their particular views concerning the justice of taxation, eminent domain, intellectual property, etc. on to a greater degree than rule-based libertarians.

6Ironically, the same argument based on interpersonal utility comparisons – that the wealthy value what they have less than the poor and that the latter “need” this wealth more than the rich do – is used by proponents of government welfare and redistribution. It is difficult to understand how an argument that can be used against a world of liberty can be used in favour of it.

7Ludwig von Mises, Human Action: A Treatise on Economics, p.676.

8It is upon this foundation that Mises’ examination of concrete economic policies, where he moves from the wertfrei into the world of value judgments – the effectiveness of the policies themselves from the point of view of those who promote them – is  based.

9Because the incessant tendency is now reaching a chronic level the ability to postpone the day of reckoning has become ever more difficult and most of the more recent glory-seekers are now living to reap what they sow. Former Federal Reserve Chairman Alan Greenspan is a pertinent example.

10George Reisman, Capitalism: A Treatise on Economics, p. 17.

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 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 the person or property of one 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. All ownership derives from acts of deliberate, physical acts of homesteading which transform an object from one good into another – in other words, the condition of owned goods is always the result of the intervention of will. Prima facie, therefore, the owner of a good is liable for its physical invasion of another person or the latter’s property. However, where there is a further intervention of will by another individual then it is this latter individual who becomes liable. 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.

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 wilful act of 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 wilful 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 my 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 this 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 reduce your personal involvement in order to mitigate risk 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 by ownerless property or 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 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 than 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 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 A 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. Fully anticipatory acts of “defence” – i.e. shooting someone before he has a chance to initiate an act of aggression against you – are 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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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.

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

8[2006] UKHL 20

Libertarianism, Morality and Religion

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A current recurring debate within the libertarian movement is that between so-called “thin” and “thick” libertarianism, the belief that libertarianism concerns only self-ownership and private property (or at least their derivative non-aggression) on the one hand (“thin”) or whether there are certain other moral imperatives or ends that are, at the very least, part of the libertarian spirit and serve to strengthen its message or, at most, are necessary for its cause (“thick”). In providing a contribution to this debate it is important to understand the place of libertarianism within two things; first, within the wider category of moral philosophy; and second, within the place of the personal ethics of individual libertarians.

Libertarianism and Moral Philosophy

Addressing the first question, it will be argued here that any concept of “thick” libertarianism misunderstands the fact that the purpose of libertarianism is not to espouse a positive theory of interpersonal morality; rather it is to preserve the character of individuals as moral agents to ensure that such theories are possible in the first place.

Questions of morality arise because humans face the constant and ceaseless condition of scarcity. Humans must prioritise the ends that they seek to fulfil as they lack sufficient means with which to satisfy all of them together. Moral considerations arise to inform this prioritisation and would be absent if it was not necessary. If every fulfilment could be achieved without the need of choice then morality would serve no purpose as every possible end would instantaneously be gratified. The necessity of choice, however, requires a means for informing that choice, a way to determine the best outcome that can be achieved with the means available. The result of any choice is an action that has a real physical effect upon the condition of the means, the matter which is the object of the action. A part of the universe is changed physically from serving one end to serving another.

We can think of morality as consisting of two parts or categories. The first part is unilateral or intra-personal and arises where you have a single, desiring, choosing and acting human surrounded only by dead and unconscious matter. Any choice that the human makes will result in an action that will have a physical effect upon at least part of this unconscious matter, for example an apple that is eaten or a piece of wood that is used for a fire or to build a house. Morality, in this instance, will inform the acting human how he should best serve his ends with the means available but there is no reciprocal relationship that arises between the human and the matter around him. Possessing no desire, choice, or action of their own and with their entire condition and motion subject solely to the laws of physics and chemistry, these external entities cannot be described as moral agents and are owed no moral obligation, nor do they possess any moral rights. Moral imperatives may serve to create boundaries upon that which you may do with a certain piece of unconscious matter, but this will entail no reciprocal moral burdens and benefits vis-à-vis that matter1. The second part of morality is bilateral or inter-personal and arises between two or many desiring, choosing and acting beings, all of whom may run into conflicts of scarcity as they seek to fulfil their individually valued ends with the means available, including their own bodies. Not only is someone else’s body inhabited by a conscious and end-seeking being, but the dead and unconscious matter around us may now also be claimed by someone else in order to fulfil that person’s ends and not ours. Hence we have moral rights and obligations that spring up between the acting beings in order to avoid or otherwise resolve these conflicts. There are two sub-divisions to this morality. First is the realm of physical enforcement of moral ends – what we might call violent enforcement. One human being may bring about his end by subjecting another to force or violence. The result of this is that one human’s ends are gained at the expense of another’s. This subdivision is the primary preoccupation of political philosophy – which moral norms may be enforced physically and what are the boundaries of that enforcement? The second sub-division is the realm of non-physical or non-violent enforcement of moral ends – those norms that may only be enforced by persuasion, cajoling, association or non-association, and so on. Furthermore, morality is used to serve as a benchmark or a standard of judgment of moral beings. We apply certain moral codes to other people’s behaviour in order to judge whether they have behaved morally or are, indeed, good and moral persons or evil scoundrels. This straddles both of the categories of morality we just outlined – we make judgments of people’s behaviour both in regard to unconscious matter (i.e. what they might do when alone, in their own home etc.) and of their behaviour towards other people. We may then modify our own behaviour in response to what we see in them – either embracing or befriending them if they are morally good or otherwise attempting to enforce our moral code if we believe them to be morally bad.

Libertarianism, thinly conceived, perfectly preserves these categories in order to provide a foundation for wider moral theory. The critical aspect of all moral agency is that an individual moral being retains the freedom to choose and to act upon his choice. Any physical restraint results in that person not being able to bring about his chosen ends, and any action of his that is compelled by force is not one that he has chosen. In other words the individual would cease to remain as a moral being at all. Libertarianism places only the rights to self-ownership and private property over unconscious matter that is previously unowned (or voluntarily transferred) within the realm of violently enforced inter-personal morality. Any person may repel any invasion of his body or property physically in order to preserve his character as a moral agent. Libertarianism’s sole preoccupation with this fact ensures that this bedrock is firmly established so that we can then go on to develop further theories of intrapersonal and interpersonal morality, to make prescriptions about people should behave, and to make judgments about the behaviour that they do make.

Let us consider, as an example, a proposition of interpersonal morality – that a person should give some of his earnings to the poor. A libertarian would state that this moral proposition would not be violently enforceable and the person would have to choose to donate his money. Such a moral proposition only makes sense when you apply the libertarian foundation of self-ownership and private property, preserving the individual’s character as a moral agent. The proposition concerns how the individual should freely choose to behave in relation to others, and having so behaved we can then make judgments about his moral character. If, on the other hand, it is proposed that the person should be forced to donate his earnings to the poor then this proposition ceases to concern the choice of the individual at all. By enforcing the imperative violently the individual ceases to have any input into the action and is treated simply like a piece of dead matter, such as a hammer or plank of wood – an unconscious tool for the furtherance of other people’s ends. However, the subtle intellectual change that has occurred is that the proposition is no longer a proposition of interpersonal morality. It is, rather, a proposition of intrapersonal morality directed at the enforcing agent, such as the tax collector or bureaucrat. It is not in any way instructing the taxed individual how to behave at all; rather it is instructing his enforcer to take money from him and do X, Y or Z with it. We cannot in any way judge the behaviour of the taxed individual as being “moral” or “immoral”; having no participation in the decision we cannot say that he is a better or worse being as a result. The only person we can judge is the enforcer and whether he behaved morally or immorally by taking the money. What we realise therefore is that any theory of interpersonal morality that enforces its decrees by violence is not a theory of interpersonal theory in any way at all. It simply a theory of intrapersonal morality for the rulers, concerning only how those in positions of power should act unilaterally, treating all other human beings as dead, unconscious tools to be exploited for whatever ends the theory sees fit. Such a theory can never be a theory of society; it preserves only the moral agency of the leader or the controller, degrading all other humans to the level of expendable resources.  Indeed, many moral propositions in public and political discourse today are not directed at the individuals in society but are, rather, are directed at government: “Government should do more to help the poor; government should build more houses; government should do more to curb fossil fuel use; government should provide a better education for my children, etc.” Only the rulers are required to make moral decisions and moral choices while the rest of us are reduced to the level of pets, to be worked, fed and watered but otherwise absolved from any responsibility for what we do. Moreover none of this changes simply because the rulers are democratically elected or, from time to time, the previous minority becomes the majority and the previous rulers may switch places with some of the previously ruled. It simply means that the propositions are directed at functional positions (Prime Minister, President, Congressman, etc.) rather than at specific, unchanging individuals.

It should be equally clear that nothing about such theories relying on force and the propositions that derive from them can make a more “moral” or “good” society for we can only judge a person’s behaviour when he is free to act. When he is forced to act or to not act then we can make no moral judgment of his action whatsoever, just as we cannot say whether a tree is behaving morally or immorally when it shakes in the wind. Indeed, as history has demonstrated amply, the more likely result is a moral degradation of the populace – laziness and lack of motivation caused by the bitterness and resentment at being forced to achieve someone else’s ends, and corruption and black marketing when there are any attempts to circumvent them.

It is this crucial recognition that libertarianism, thinly conceived, has to offer, and why it is becoming so attractive as the failure of government and forced rule becomes more obvious each and every day. Thin libertarianism may have nothing to say whatsoever on any positive moral and political theories. Rather, when those theories advocate violent enforcement, libertarianism, in effect, says “Stop!” Slow down, back track, and understand that for any coherent theory of interpersonal morality you need to preserve self-ownership and private property. Given that this recognition is so desperately lacking, any positive ends that are built upon libertarianism as a superstructure through any “thickening” of its concept is likely to distract from its vital core. In the short term this is likely to dilute the distinction between libertarianism and all other political theories (whether they be conservative or progressive) that has made it so successful – possibly leading to the subsuming of libertarianism as a branch of those political traditions. In the long term, there is the danger that any moral superstructure that is built on top of the foundation of non-aggression will come to jettison the crucial foundation itself. This is arguably what happened to classical liberalism, resulting in its transformation into the statist liberalism we know today2. However, our argument here does not simply concern strategy – that which is necessary for preserving libertarianism, or that which may be best in persuading people of the virtues of a free society and attracting them to the libertarian cause. Rather, the recognition of the preservation of individuals’ moral agency before any further positive, interpersonal moral theory is developed is absolutely essential for conceptual clarity and libertarianism’s place as the bedrock of interpersonal moral theory is required intellectually and not just practically.

We might also point out that there appear to be no positive ends and values that flow self-evidently from self-ownership and private property, or from their derivative, the non-aggression principle. Rather, any such ends and values that are advanced by the individual “thick” libertarian tend to concern that individual’s own personal philosophical preoccupations, such individuals including those with very strong libertarian and scholarly credentials3. It is difficult to see how such varying ends and values flow self-evidently from the same principle. More likely the individual “thickest” identifies the state as the roadblock towards the achievement of his own personal, societal ideals and so he advocates freedom. But he then makes the mistaken leap of tying those ideals – that which he wishes to accomplish through freedom – to freedom itself. We do not mean to suggest, of course, that there is no purpose or importance in debating which values and ends are likely to prevail in a free society, or over those which may assist the libertarian cause (as we shall proceed to do below). But such a debate has nothing per se to do with libertarianism’s place in the sphere of moral and political theory.

Libertarianism and Personal Morality

Addressing now the second aspect of libertarianism – that of its place within the moral outlook of the individual libertarian – it is sufficient, for a person in his capacity as a libertarian, to recognise only private property and self-ownership and to not develop any further moral superstructure upon those foundations. But in his capacity as a human being who must take his place in society we have to stress that such a limitation is woefully inadequate. Libertarianism only states that each and every person should be able to act free from physical incursion. It does not go on to say how he should choose to act, which decisions he should make in allocating the scarce means at his disposal. The consistent libertarian who claimed that self-ownership and private property are the only moral considerations would, in fact, never act at all as he would possess no ends to strive for and no values of which he would seek fulfilment. Rather we all as human beings have values, choices that we believe are right and choices that we believe are wrong, and we all seek to make the right choices and criticise those who do not. Libertarians can probably be forgiven for not having, thus far, emphasised their personal moral theories alongside their libertarian credentials. The violence and destruction wrought by the state has given us plenty to concentrate on. Nevertheless, such a development and espousal of a personal moral theory is critical from both a strategic as well as an intellectual point of view. Not only is it possible for someone who abides strictly by the non-aggression principle to be a thoroughly rotten and unpleasant individual, but the greatest danger lies in the fact that libertarians, by refusing to interfere violently in certain peaceful but morally repugnant ends, may be misinterpreted as going further and actively condoning and praising such behaviour. Simply because we collectively, in our capacity as libertarians, have nothing to say about non-violent actions and choices may result in us appearing as the “anything goes” crowd, failing to address the genuine and heartfelt moral concerns of people we hope to persuade of the virtues of a free society. It is often not sufficient for people to hear that loose abstractions such as “the market” or “private charity” will, for example, suffice to take care of the poor, even if we demonstrate their superiority in doing so. Rather, with any moral issue we are presented, we must be prepared to take a personal moral stance. Our only difference is that we would not violently enforce that stance but would, rather, seek to promote it non-violently and to persuade people to make what we think would be the right choice. It is, therefore, perfectly commendable to state, for example, that people should not be forced to give to the poor but that it would be a good thing for them to choose to do so; or to state that no one should violently stop another person from taking drugs but that to do so would be a morally bad choice and that we would not wish to associate with those people; or to state that you can’t stop a person from making racist comments but you would think that such a person is an ignorant and repugnant bigot. Or, of course, you might conclude the opposite if you can persuasively argue your case. What is important is that you engage with the issue and do not stop short at merely analysing an action or end as non-violent and then having nothing more to say. But the views that you espouse will not be made in your capacity as a libertarian – libertarianism only forming the bedrock of your moral outlook – but as a choosing, desiring, valuing and acting human being who takes his place in society. Nevertheless, the more you build your personal moral views upon a libertarian bedrock, the stronger that bedrock becomes by demonstrating conclusively that libertarians as human beings are not morally vacuous but can, indeed, hold a flourishing and well-developed positive moral theory that addresses the moral concerns of everyone else in society. Indeed, summing up what we have concluded in this section, we might say that a “thick” conception of libertarianism would serve to undermine and destroy it both intellectually and practically; whereas libertarians possessing an otherwise “thick” and engaging supra-libertarian moral outlook separate from but compatible with libertarianism, would very much promote it.

Morality and Religion in a Free Society

One of our conclusions above was that even though a debate concerning which values and ends are likely to prevail in a free society has nothing to do with libertarianism’s place in the sphere of moral and political theory, there is still some purpose and merit in venturing to speculate upon whether, in a world that was completely free from government force and compulsion and which was founded upon the institutions of self-ownership and private property, these facts in and of themselves would encourage a general supra-libertarian morality in a particular direction. For example, if left to their own devices, would that very fact cause people be more likely to create a world of inclusion, non-discrimination based upon race, gender, sexual orientation, etc., would it be secular or religious, multi-cultural or strictly divided, and so on? Would it be a world in which drugs and recreational substance use is widespread or is it more likely to encourage restraint and conservatism in such use? Would it be a world of close connections of family and friendship or would there be more “free love” and sexual experimentation? Even though as a matter of pure logic, libertarianism is compatible with any moral theory so long as the ends posited by that theory do not invade the private property of anyone else, it is submitted that, in practice, it is not likely to work out that way and that we can expect at least a certain kind of supra-libertarian moral order to exist by virtue of the fact that a society is founded upon the institution of private property. What follows is the author’s speculation upon what kind of order this will be.

The foundation of this speculation is the observation that wherever human freedom has been unshackled and free enterprise has been allowed to pursue whatever ends it chooses with relatively less molestation, individuals have chosen to engage in processes that increase their material prosperity ahead of simply sitting around day dreaming and enjoying endless leisure time. The capacity for energy and enterprise has increased, the division of labour has widened and the material standard of living has risen. This may partly be implied in the logic of action itself as increased freedom leads to greater or more successful action and is therefore, likely to result in more actions and more improvement. It is also the case that fulfilment of more ethereal needs such as spirituality, rejuvenation, relaxation, meditation, and so on can only come about once material needs have been satisfied so that even if one was to pursue the former the latter would have to be conquered first. Nevertheless, it is an empirical observation and there has never been any strict requirement for individuals to choose to engage in production rather than simply extending their leisure time4. It is therefore reasonable to assume that the creation of a free society would lead to expansion of the division of labour, the accumulation of capital, an increase in production, and of the material standard of living.

What we can note about this fact is that those who, in a free society, accumulate income and wealth and hence possess a greater ability to direct economic resources are those who serve the needs of consumers. At the level of the capitalist-entrepreneurs, therefore, this will require a number of different qualities: the patience and low time preference to accumulate capital; good judgment, foresight and prudence in directing that capital to where it is most needed; empathy and understanding of one’s customers; and the sociability and communicability required to engage and motivate contractors, colleagues, and employees. The capitalist-entrepreneurs in turn will look for employees who are hard-working, educated, reliable, trustworthy and the employees will therefore seek to spend their money on consumers’ goods that will nurture, within them, these qualities. In other words serving the needs of others and the qualities and characteristics required to do so are ends that would be encouraged by the adoption of a free society. Resources therefore will accumulate in the hands of those who display these qualities and would disappear from the hands of those who do not; qualities and characteristics that harm or otherwise interfere with one’s ability to serve others – laziness, high time preference, a lack of empathetic understanding, unreliability, and on so – will be discouraged and are likely to diminish.  While, therefore, it is possible for persons to engage in endless leisure time and spend their entire day indulging in activities such as drinking, drug-taking and having sex, the resources available for them to do so will be limited and they are likely to be excluded from all prospects of increasing those resources as the habits in which they indulge are antithetical to any method of doing so (i.e. serving others) on the free market.

Second, is a free society likely to be non-discriminatory, and inclusive of all genders, races, religious beliefs, sexual orientations, and so on, or will it be highly segregated and exclusive? We can speculate that there will be two outcomes to this question rather than one. First, in the impersonal and arm’s length dealings of the marketplace, it is likely that all factors that are not relevant to one’s ability to serve the needs of others will be excluded from consideration. If I buy a sweater from a shop it is not likely to make any difference to me whether it was made by a man or a woman, by a white or a black, by a gay or a straight, by a pious Christian or a devil-worshipper. I am so far removed from the complex chain of production that any prejudice or preference I might have in this sweater being made by someone of a particular creed or colour is likely to recede drastically. If consumers do not care about a worker’s personal qualities other than his/her ability to serve the consumer’s ends then neither may capitalist-entrepreneurs do so in the chain of production as they are forced to adhere to their customers’ wishes. If I am looking to hire an employee for my enterprise, the costs of excluding the best person for the job based on some discriminatory ground will mean that I fail to keep up with my competition and will lose money faster. It is true that certain industries will serve different types of people and that certain personal qualities are likely to make one more adept at serving the needs of people who are similar to you. Christians may be better at investing in, producing, marketing and serving specific goods that are desired by other Christians; gay men may be the best people to do the same for gay men, and so on. And people of certain genders, races or cultures may be attracted to certain types of employment ahead of others. It might also be true that a person feels more comfortable if the precise person who serves them at the front line is someone of their ilk – the familiarity of a similar person perhaps helping to grease the wheels of commerce if empathy, advice or understanding is needed to assist a person with his purchase. But all of this only produces an outcome that better serves the needs of consumers and is not based on race, gender, or sexual orientation per se. If a pious, heterosexual woman could develop, market and serve products to gay men better than other gay men could then she would receive their custom and gay male vendors would not. Furthermore, in the vast array of production of goods that are common to all or most of us and are not produced for a specific category of person, any kind of discrimination in the chain of production is likely to diminish as we will always go to the people who can provide those goods at the lowest cost. Freedom under the division of labour does not require everyone to like or love everyone else, or for everyone to be liked or loved; it only requires you to serve them and the skills that each person can offer in this regard are likely to trump any other factors when it comes to the question of inclusion or exclusion. Our second possible outcome, however, might be slightly different. In the area of personal or familiar relations – as opposed to the arm’s length and impersonal relations of the marketplace – discrimination and exclusion may become more, rather than less intense. Although it is possible for the inclusion of the marketplace to encourage and foster a blending of different people – after all, if you work in the same factory, shop or office as someone of a different race or culture, there is the possibility or even the likelihood, that you will become friends simply through the opportunity of contact – on the whole, people tend to prefer the comfort of familiarity, similarity and uniformity. Individual residential areas and communities, therefore, might be internally homogenous and will cater only to the needs of the type of person living there, even though those communities will be happy to trade with others of a different type in the marketplace. This is not to imply, of course, that each different community will actively hate any other and can only barely stand to engage in mutual trade. Rather, it is likely to be a cordial, peaceful and even friendly co-existence. All we are suggesting is that when it comes to a matter of highest preference people are likely to opt for those who are similar to them in their personal and family relationships – such a preference not requiring you to hate anyone who is not similar. In any case, this entire speculation may be wrong and perhaps people will choose to mix more in their personal relationships as well as in their professional. The beauty of the market is that as we do not force anyone to adhere to a certain set of principles then we do not know the precise outcome; all we know is that that which results is the outcome that will satisfy everybody as far as possible.

The third consideration is related to the previous two. As there is no welfare state in a free society and nobody will have the right to violently wrestle resources from anyone else in the event of unemployment or need, the cultivation of personal relationships becomes relatively more important as there may come a day when we will need to rely upon those relationships if we are in dire need. We can speculate, therefore, that the institutions of family and friendship will strengthen in a free society. Such institutions will seek to include those who are trustworthy, reliable, sociable and responsible and will exclude those who are deceitful, unreliable, unfriendly and selfish. There is also likely to be less “free love” and sexual promiscuity in favour of longer term relationships and marriage that produce children, the latter being those upon whom you can rely when you reach old age and infirmity. Furthermore, as there will be no state-supported child rearing in a free society, only those who accumulate enough wealth by serving the needs of others will be able to afford to raise children. Although some of the qualities necessary for serving the needs of others that are inherent in the parent may be passed on genetically (so that people lacking those qualities will simply cease to be born in significant numbers), even if they are not then the parents are likely to foster the qualities in their children that made them, the parents, successful. Moreover, given that the parents will one day die and wish to leave their wealth to their children they are likely to require the reassurance that the fruits of their life’s work is being left to decent, responsible hands. They are not likely to be content to leave their wealth to a lazy, ill-educated drug addict.

What we have hypothesised, therefore, is that a free society, in which everyone must possess the ability to serve the needs of consumers in order to attract income and wealth, is likely to result in a cultivation of the qualities necessary for doing so, such a cultivation producing a relatively “conservative” (with a small “c”) society. This society will discriminate less on the bases of gender, race, colour, etc. but rather upon the specifically chosen behaviour of free individuals. Those who behave in accordance with ways that serve the needs of consumer and develop the characteristics necessary for doing so will be included. Those who do not are likely to be excluded. We must emphasise, however, that nothing of what we have said requires an individual libertarian to support or promote these ends. Only if people turn down the path of increasing their material welfare and expanding the division of labour would qualities and values necessary for serving others become prominent and our speculation is based only upon the fact that this is the choice that has been made in the past. It is possible for the individual libertarian to advocate a different choice and for free individuals to make it.

One final interesting question concerns the place of religion and religious worship in a free society. Religion has always fundamentally concerned three questions – why we are here; how we got here; and what we should do now that we are here. The pondering of these questions and the result of a shared belief as to their answers among individuals is, of course, logically compatible with libertarianism so long as its practice is peaceful and voluntary. However, the inability of early thought to separate phenomena from purposeful intent resulted in the fact that these questions have not been addressed with mutual exclusivity. Why we are here has been ascribed to the purposeful desire of one or more deities; how we got here was a result of that deity’s action; and it followed, therefore, that what we should do while we are here was to bow to that deity’s commands. Therefore, given the deep-seated need in the human psyche to fill the void that is left by these problems and the resulting imperatives that may be dispensed, whoever has been able to provide the gateway to these answers has enjoyed an immense amount of power – tell people where they came from and how it was done then you can tell people what they should do. Religion has therefore always attracted to its ranks the greedy and the power hungry and it is no accident that it has, throughout much of history, been aligned with the state – limited not just to established churches, but to the extent that the king or emperor himself was elevated to the rank of a God. Although early Christianity and the Thomist emphasis on the natural law diminished this welding for a time, the Protestant Reformation and the rejection, by John Calvin and Martin Luther, of reasoned ethics served to make religion once more a tool of, rather than a controlling force over, absolute rulers. Furthermore, religious wars and crusades have often been wars of power and control rather than strictly over the question of belief. Much of the history of religion has therefore been distinctly anti-libertarian. These days, of course, the development of scientific knowledge has stepped in to answer the puzzle of how we got here, which has served, for many people, to sever any connection between the cause of the universe and any moral imperatives they may face in their daily lives. However, there are two severe limitations to this. First, a knowledge of the natural sciences itself posits no moral theory and, other than agreeing that the pursuit of truth is a good and valuable thing, scientists can offer no moral guidance. They might be able to tell you what will happen when a man has sexual intercourse with a woman, and they could describe the shock you would get if you were to put your fingers into a power socket; but they will not, as a result of their discipline alone, be able to tell you why you should or should not do these things. Rather than replacing religious imperatives, the secularity encouraged by science has, rather, left an empty vacuum. Indeed, knowledge derived from scientific research has been used for some horrendously evil ends as well as good. Secondly the purpose of science is to trace the effects of phenomena back to their ultimate cause; yet the human mind is not able, in the physical and logical dimension it inhabits, to comprehend the concept of an ultimate cause. Every cause that we discover in turn becomes another effect whose existence and characteristics must be ascribed to some further cause that must be investigated. The concept of God is an attempt to deal with this teleological problem; we ascribe to God abilities and characteristics that defy normal explanation, yet our image of him – as a distinct consciousness, a father-figure, etc. – couches these characteristics in a manner that we can understand. Indeed, one of the frequent objections to the existence of God pronounced by atheists – “why are there so many Gods and which one is the right God?” – is perhaps not as interesting as the question as to why they are all so similar. Nearly always they are paternalistic humanoids, they are responsible for all creation and all life and they are the dispensers – if not always the practitioners – of morality. Rather than there being many different Gods, different cultures and traditions have ascribed broadly similar characteristics, varying only in their own cultural idiosyncrasies, to what is roughly the same being in order to create a giant metaphor for things that we do not and perhaps cannot ever understand. Science, or anything else, has not yet provided a sufficient alternative answer to this problem. Indeed, the existence of God is not viewed by believers as a strictly scientific problem like any other. The tools of science – the laws of physics and the laws of logic – are themselves part of the very phenomenon under investigation – creation – and are subject to God’s will. As tools for explaining their creator they therefore appear hopelessly blunt, if not, completely inadequate. None of this, of course, is meant to condone belief and condemn non-belief, or vice versa. Rather it is an attempt to explain why people hold the beliefs that they do.

Having said all of this, what can we conclude about religion and libertarianism? It is difficult to say whether a free society will encourage or discourage religious practice. What we can be certain of, however, is that it will continue to be a very strong force in the world, probably for a long time. There is clearly a need somewhere in the human psyche, possessed by a great many individuals, to ponder the origins of the universe, not just the how, where and the when but the why. Given our inability to meet these needs we can be sure that a libertarian world will have to find some way to deal with religion. Whether this will be mere accommodation, opposition, or embracing will be dependent upon whether religion in turn neutrally respects, is opposed to, or actively supports libertarian principles. There are one or two arguable reasons for at least an accommodation. First, there are many libertarian imperatives, rules, parables and examples in religious texts. The Ten Commandments and the Sermon on the Mount, for instance, contain some strong libertarian imperatives and the remainder is not avowedly unlibertarian. There is no reason why, in a libertarian world, religions should not emphasise a more libertarian bedrock for their further moral teachings. Secondly, religion would be expected to dissolve its historical marriage to power and the state, a dissolution that may not occur easily. Yet so too will everyone else have to do the same – bureaucrats, politicians, favoured corporations, and so on. Nobody will be able to latch onto and use the mantle of the state to pursue their ends. There is no reason why religious people should find this more difficult than anyone else. Given that a libertarian world is unlikely to appear unless a majority of the citizenry come to believe in the justice of libertarianism, congregations themselves should already have embraced the libertarian mind-set. Finally, we may consider the problem of so-called religious extremism, the sort of extremism that wishes to destroy or violently repress anything contrary to its teachings. Particularly, at this time, we might as well mention the dominant issue of Islamic fundamentalism that fuels terrorism. Whatever political system is adopted and whatever the view of the majority of people with regards to their rights and obligations towards others, there will always be fundamentalists, radicals, extremists, zealots and revolutionaries in just the same way as there will always be murderers, rapists, thieves and fraudsters. Many of these will, from any common standard, be lunatics, nutcases or simply deluded fools. Left to their own devices, as they would be in a libertarian world, these people would simply be a bare minority of loners who are unable to spread their views, with any violent attempt to accomplish their aims simply being classified as criminal behaviour like any other. The only reason that Islamic religious extremists who encourage terrorism and violence gain any traction whatsoever is because the foreign policy of the United States and its allies pours fuel onto the fire of what they are saying. The behaviour of Western governments – bombing civilians, invading sovereign countries, spreading a secular democracy – lends plausibility to religious extremism as both an explanation of and a solution for a very real and unwanted foreign incursion. With State power eliminated in a libertarian world, this problem would not exist and such religious extremism would be without a vehicle for motivation.

Conclusion

Summing up everything we have said, libertarianism, thinly conceived, is necessary to form the foundation of wider moral theory. Libertarianism is, therefore, not “thick”. Libertarians, themselves, however, must, in their capacity as human beings have a “thick” moral outlook, that outlook not being a part of libertarianism per se but built upon its firm foundations of self-ownership and private property and seeking to strengthen those foundations through non-violent enforcement. We can, though, speculate that a certain moral order may unfold in a society based upon self-ownership and private property if free individuals choose to expand their material well-being and widen the division of labour. That order is likely to emphasise roughly “conservative” values and while it is not possible to say whether religion is encouraged or discouraged by such an order we can conclude that it is likely to occupy a prominent place.

1Moral considerations may, of course, arise out of concerns for the welfare of the matter – for example, whether the act of a human being may legitimately cause an animal (a non-actor) pain and suffering. But such considerations only concern whether it is good for the human to be the initiator of the animal’s experience of pain and do not create any reciprocal moral rights in the animal.

2Llewellyn H Rockwell Jr., The Future of Libertarianism, lewrockwell.com, May 1st 2014.

3Walter Block identifies a number of prominent libertarians who draw either right wing or left wing conclusions from libertarian foundations. See Walter Block, Libertarianism is unique; it belongs neither to the right nor the left: a critique of the views of Long, Holcombe, and Baden on the left, Hoppe, Feser and Paul on the right” Journal of Libertarian Studies; Vol. 22: 127–70.

4Those who hark back to the pre-industrial era seem to assume that this is how blissful and care-free life used to be, overlooking the fact that the need to provide enough food alone necessitated back breaking amounts of work.

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