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.
Building a Libertarian World
February 26, 2017
Duncan Whitmore Commentary/Review, Method and Strategy, Short Posts Anarchism, Capitalism, Choice, Customs, Decentralisation, Democracy, Governance, Law, Libertarianism, Liberty, localism, Minarchism, Morality, Non-aggression principle, Order, Property, rationalism, Rights, Self-ownership, Social Institutions, Socialisation, Socialism, State, States, Statism, Thick Libertarianism, Thin Libertarianism, volition, Welfare State Leave a comment
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.
View the video version of this post.