The Nature and Origin of Rights, Part Two

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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The Nature and Origin of Rights, Part One

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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Libertarian Law and Legal Systems Part Three – Consent and Contract

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We will begin our survey of the causative events of legal liability in a libertarian legal system with those that arise from consent because, even though people may view “the law” as being synonymous with wrongs such as crimes and torts, consensual legal relations are, in fact, the most frequent types of social interaction that arise in an individual’s life. The predominant form of legal relations arising from consent is, of course, the contract; a person may enter tens of these contracts every single day by, for example, just purchasing a coffee, a bus ticket, or lunch, whereas most people would scarcely commit a single crime in their entire lives (although the latter becomes less likely in our actual world where governments spill oceans of ink in criminalising, through legislation, even the most innocuous of actions). While any good legal system must have strong proscriptions against horrific acts such as murder and rape, it is the contract that is the primary preoccupation of everyone’s daily lives.

The first question to consider, then, is precisely what is a contract? Although it should be clear that all contracts concern some sort of bilateral arrangement, different legal systems have varying and often elaborate definitions. In English law and in common law systems generally, contracts are agreements or promises made with consideration, that is, some form of good or service that is exchanged (alternatively, deeds can be signed to bind agreements made without consideration). There is, therefore a high degree of freedom of contract with the emphasis of the law being more on the question of the enforceability of the performance specified by the contract. The more prescriptive civil law jurisdictions, on the other hand, are more concerned with the precise rights and obligations that arise as a result of the contract. Further, the bases upon which the legitimacy of contracts rests are also varied and numerous. For example, is it because the promisor intended to be bound in some way, or because the promisee relied upon the promise in order to arrange his affairs in a manner in which he would not have done so but for the promise? Are contracts even promises at all, or are they agreements, and what is the difference? We do not have the space to enter a discussion of the shortcomings of most of these definitions of contracts and their bases of legitimacy1. But for libertarians it should be clear that none of them have much to do with the key concept of property with which all legal relations in a libertarian world are concerned (although the requirement of consideration in English law bears some resemblance to it). What, then, is this essential element of property in contractual relations?

We all know, as “Austrian” economists, that humans act so as to direct scarce resources available to their most highly valued ends. Libertarian theory states that you may do this unilaterally so long as the goods to which you are subjecting your action are ownerless and are, therefore, unvalued by anyone else. We can each arrange ownerless resources to meet our needs in any fashion we like without running into conflicts with other people. However, in a world of interpersonal scarcity, we find ourselves in the position of desiring and coveting the goods that are owned by other people. We would prefer a particular good to be moved to meeting our ends and away from those of the current owner. But libertarian ethics prevents us from unilaterally making goods owned by someone else the object of our action, for then we are invading his property and violating the non-aggression principle. Rather, we have to secure the consent of the owner to move that property from meeting his ends towards meeting ours. The basic purpose of a contract, therefore, is to procure someone else to voluntarily deal with his property in a way other than he is doing so at the moment. It is a method by which we can legitimately secure property that is owned by someone else towards meeting our ends. Contracts are, in effect, extended actions, the extension of gaining consent being necessary in order to overcome the “hurdle” of the title over the property claimed by the existing owner. Normally the securing of this consent requires a “tit for tat” arrangement – “If you will sell me a bar of chocolate, I will pay you 50p”; or “If you pay me £20 I will mow your lawn”. However, this needn’t be so, nor does the initiator of the exchange have to be the one who wishes to get his hands on someone else’s property. As we shall see, gifts are a valid form of contract but in this case it is normally the donor and not the recipient who proposes that a gift should be made.

Why, however, do contracts have the force of law? If they are to be violently enforced then any breach of a contract would necessarily have to be a violation of the non-aggression principle otherwise, in a libertarian world, only non-violent methods of enforcement could be resorted to. The reason is that the contracting party is not just agreeing to do something with his property – rather, he is purporting to grant a title over the property to you. At its fullest extent this may be an exchange of the full title of ownership from him to you, completely extinguishing his title and furnishing you with 100% ownership. However it needn’t necessarily be so – leasehold titles (or the “renting” of durable goods) and easement rights would be valid titles exchanged by contract. Because the owner of property has granted you a title over that property any subsequent interference in that title by him is a breach of your property rights and a violation of the non-aggression principle. Thus, in a libertarian world, it may be enforced by legal sanction.

Contracts, therefore are exchanges, or transfers of title to property. This definition of a contract may be known to readers who are familiar with the “title transfer” theory of contract. Nevertheless there needn’t be a strict “title” to the property in the sense with which this word is understood in contemporary legal systems. It is typical, in economics, to make a distinction between goods on the one hand and services on the other, a good, for example, being an apple that can be eaten whereas a service being, say, a ride in a taxi cab. Legally I would have title to the apple but I would not have title to the taxi cab. Yet all goods are valued for the service that they offer – the apple for the satiating of my hunger and the taxi for its transportation of me from A to B. There is no value inherent in goods, rather the value always springs from the service it is able to achieve in meeting the fulfilment of an end. The distinction arises because “goods” typically service those ends that we can only satisfy from complete ownership – i.e. a title over – and use of the servicing good. I cannot borrow, eat and then return the same apple at a later date – rather, I have to own it in its entirety. “Services”, on the other hand, are those goods that service ends that can be satisfied without complete ownership. Contemporary legal systems do not say that I own or lease a taxi in order to satisfy my end of getting from A to B; nevertheless, I do obtain possession of it for a period of time. Similarly, if I am an employer a legal system would not say that I “own” the labour of my employee. Colloquially, in each case, I might say that I have “hired” a taxi or “hired” my employee but legal systems confer no formal title to either of these things upon me. How libertarian legal systems might unscramble these problems we shall see below.

In order to be the subject of a contract the property exchanged must be alienable from the original owner because transfer of the title requires the abandonment of that good. With the hiring or leasing out of a good the good in its entirety is not, of course, abandoned by the original owner, merely the good’s productive services for the duration of the period of hire. As we shall see labour contracts can be enforced as exchanges of money in return for the performance of the service of labour. Whether or not a person has the ability to entirely alienate from himself the productive services of his body and to transfer them as property (i.e. enter into a contract of slavery) is a contentious area of libertarian theory that we cannot hope to resolve here. Nevertheless we must recognise the fact that libertarian courts will face it as a question.

The contract, therefore, is the execution of the transfer of title from one person to another – it is the instrument that gives it legal recognition. Anything interpreted as being preliminary to an execution of transfer on the part of the transferring party – the promise to transfer, the desire to transfer, the wish to transfer, the hope to transfer, and so on – does not suffice as a contract. It is typical to justify this on the grounds that recognising a promise or statement of desire as a contract would require a person to bind, and thus alienate, his will, something which cannot be done. While may be true, a simpler explanation is that as the statement or promise has not executed transfer of the actual good under consideration, there must, in a libertarian legal system, be some other property that is transferred if there is to be a valid contract. This can only be the thought or desire expressed by the transferring party. But as we noted above, thoughts, feelings, desires and so on are not tangible property and are not capable of ownership. A fortiori they cannot, therefore, be transferred. These thoughts and feelings do, of course, reside in the physical matter of the brain, but aside from the inability to identify and isolate the specific cerebral matter in which these thoughts reside few contracting parties are likely to be intent upon transferring a physical part of their most vital organ. In the absence of any conduct that indicates an actual transfer of tangible property that is the subject of the statement of desire or promise, there will be no contract in a libertarian legal system. Precisely what this conduct will be is for a libertarian courts to decide. This does not mean to say, of course, that promises or expressions of desire do not have moral force even though they lack legal force. We are not stating that a person would not be behaving badly by reneging on his promise; we are merely stating that he may not be subject legal sanction – i.e. the use of force – as a response to this withdrawal. There is also the possibility that agreements masquerading as promises or giving the appearance of promises will be given recognition as contracts by a libertarian court, particularly where the subject matter is clear and unambiguous and the difference turns only on a matter of words. For example, consider the two statements:

“I will transfer £100 to you on Thursday”

“I promise I will transfer £100 to you on Thursday”

The first statement would ordinarily be binding upon the transferring party, the second one would not. However libertarian courts may be loath to dismiss the second as being without legal consequence simply by the insertion of the word “promise”. What has to be remembered is that the entire conduct of the individual is considered and merely because he used the word “promise” does not necessarily mean that he did not intend to action a transfer of title to the £100. For example, if the statement was an off-the-cuff remark then it may be held to be a promise; on the other hand, if it was the conclusion of drawn out negotiations then it may be held to be a binding contract.

It is important to realise that the property need not be in existence or under the legal ownership of the transferring party at the time of contract. If I contract someone to clean my car next week for a sum of money, payable upon completion, I might not have the money now but will do so by the time I come to make payment. Similarly, I might agree to sell someone a car in one month that I do not own now but will be required to arrange for ownership of it before the transfer date. Parties to contracts need to judge, individually, the risk of default involved in entering such contracts. A standard commercial solution that has emerged in our contemporary legal systems is the thirty day credit period where a supplier will transfer a good on day one, will invoice the recipient and the latter will be required to make payment in cash – not existing in the debtor’s possession at the time of the contract – within thirty days. Furthermore, it should be clear that there is no reason why libertarian courts would not recognise transfers taking effect at a future date, so long as the action of the transferring party was interpreted as a statement of transfer and not as mere promise or wish.

Finally, contracts can be oral or written; the difference may, of course, have evidential impacts but as long as the facts of a case are agreed the precise form of the contract makes little difference upon the questions of law.

Types of Contract

Let us therefore investigate the types of situation in which contracts may arise and where a libertarian legal system will be required to interpret and determine the legal outcomes for. There are five such possible situations:

  • The unilateral declaration of transfer of a good (i.e. a “gift”);
  • The exchange of a good for another good;
  • The exchange of a good for the performance of a service;
  • The exchange of a performance of a service for the performance of a service;
  • The unilateral declaration of the performance of a service.

Each of these situations involves the intention to transfer at least a portion of the productive services of property to another individual.

First of all, the gift contract is relatively straightforward – a simple declaration of transfer of property by an individual without any action necessary on the part of the recipient. It is clear in this instance precisely what the property is and who should own it as a result of the transfer – for property is being transferred in a single direction without condition. Even though the receiving party has done nothing he may now (or at a specified date of transfer) consider the title to the property his. He may, of course, refuse, in which case the property would either revert to the transferring party or would simply become abandoned. If, however, the transferring party retain possession of the property it is clear that he has now absconded with what is somebody else’s property – hence he can be compelled by legal remedy – i.e. violent enforcement – to rectify that situation. Possible remedies we shall explore below. Matters become a little more complicated when a good is exchanged in return for another good. There are several ways in which this could, theoretically, take effect. The first is for each party to declare in the contract the transfer of each other’s property, for example, “A hereby transfers to B title to a sum of £100 to B and B hereby transfers to A title to a television set”. Although this could be applied to some situations such a contract appears to be more like two unilateral declarations of transfer (i.e. two simultaneous gifts) than a contract of exchange and this does not correctly interpret the intentions of the parties to the exchange. Few people would suggest that when you buy something in a shop you are “exchanging gifts” as opposed to engaging in mutual trade. People are not simply transferring their property in the hope of getting something back – rather, the transfer of title becomes conditional upon getting something back and title only transfers when something is given back. In other words A will only transfer a sum of £100 to B if B will transfer the title to a television set to A. Very few transactions are physically simultaneous – somebody usually has to transfer their property before they receive the other party’s property in return. Even in a shop when the period of transaction is very short, either the purchaser has to hand over the money before he gets the good or the shopkeeper has to hand over the good before he gets the money. A conditional exchange prevents title to your property passing until the other side fulfils his half of the bargain. Precisely which titles pass and when depends upon the wording of the contract. The contract may specify that B’s transfer to A of the title to a television set will be made upon the transfer of £100 by A to B – in other words, title to the money has to pass first. If B delivers the television set to A in advance then title to the set does not pass; if A defaults, then under this wording the television set is the property which B retains title over (i.e. he gains no title to the money that should have been paid for it). If, on the other hand, A pays in advance then title to the money transfers from A to B immediately and title to the television set transfers from B to A; the television set is now properly A’s and B is required to deliver it. However, if the wording of the contract was the other way round – that A’s transfer to B of the title to money will be made upon the transfer of the television set by B to A – then the situation is reversed and now it is title to the television set that must pass first. If B delivers the television set in advance of payment then it is the £100 that is now his and not the television set; if A pays in advance then he retains title to the £100 until the television set is transferred. Much of this is, of course, theoretical as when it comes to dealing with a defaulting party your primary interest is in pursuing the course of action that gives you the greatest chance of some sort of recovery rather than relentlessly striving after the very property that is yours. Indeed, as we shall see below, most commercial contracts will state the situation that occurs in default by specifying precisely which title exchanges will occur in all possible actions of each party (if person A pays, outcome X will result; if person A does not pay, outcome Y will result, etc.) Nevertheless this theoretical clarity is important for understanding the foundations of the libertarian law of contract and how it is fundamentally based upon the concept of property. Furthermore, we might say that the hire of durable goods – including the leasing of land – falls under this category. The good is not transferred in its entirety but the degree and length of possession transferred is significant enough to confer a leasehold title to the property upon the recipient.

Given this, should not the third type of situation – the transfer of a good in exchange for the performance of a service – fall into the second? As we outlined above, all services depend upon property to carry them out and the recipient of the service is, in effect, hiring the property for the duration of the period of time in which the service is performed – a ride in a taxi being a good example. However, unlike the lease of land, we never say that a person gains title to a taxi and its driver even though in theory we might say that he should so gain. The reason is likely to be precisely as we stated in part one – that legal rules and principles are determined not only by what should be applied in theory but by that which accords with custom, tradition and practical expedience. The rights which result from conflicts arising from scarcity are only those rights that people demand; no one demands rights over goods that are not scarce because there is no conflict over these goods. Where the goods are scarce, however, we must remember that the enforcement of titles and ownership rights, followed by any subsequent remedial action, is itself costly and burdensome. There will, therefore, always be a category of scarce goods where the economic benefit is low and the cost of recovery high so that the conferring of formal titles would be wasteful. It is reasonable to speculate that services fall into this category. A ride in a taxi is of such short duration, the economic benefit minor, and with dozens of rides being carried out for different people every day, people are not willing to demand the security of a formal title in order to resolve any arising conflict. If, on the other hand, taxi rides were to become crucial to welfare or desperately scarce then formal titles may become worthwhile for this purpose. A more likely scenario is if someone wishes to hire a taxi for a number of days in order ferry important guests to and from various functions in which case a formal hire title may be necessary. The same phenomenon will be in operation when the goods providing the services are not delegated exclusively to the possession of the beneficiary. A professional accountant, for example, may deal with dozens of clients from his single office and may switch back and forth between work for a number of them in a single day. Working out a system of titles in such a case would be not only arduous and costly but close to impossible.

In the absence, therefore, of a formal title to the goods providing the service what security is available to the recipient of the service? If he is transferring a good in exchange for the service it is likely that courts recognise this contract as a conditional transfer of the good – for example, A will transfer £5 if B gives him a ride in the taxi. If A does not get his taxi ride then he keeps his money, i.e. title to the money does not pass to B until the journey is complete, regardless of when payment is actually made. This latter aspect is especially important for services that are delivered over a long period of time such as a development or consultancy. Down payments or deposits will be required so that the developer can fund his operations for the period of service but should he fail to deliver then the contracting party can sue for return of the funds as the latter remain his property.

Matters become a little more difficult in the fourth type of situation – that of a performance of a service in return for the performance of a service. For example, A will mow B’s lawn if B gives A a ride in B’s taxi cab. Other examples might be more extensive – A will provide B with consultancy services for a year if B will provide A with IT services. Such contracts are, again, conditional exchanges from which the recipients benefit except that no formal title to property passes. In pure theory no contract should be recognised in this situation because of the lack of the property element. Nevertheless, we can analyse some of the considerations a libertarian legal system may have to face in determining the outcomes of these situations. First, we can say that, as we explained above, the absence of intention to transfer formal titles demonstrates that the parties place a relatively low value on gaining the outcome. It might not matter, for instance, if A mows B’s lawn once but does not gain his taxi ride. In most cases these situations are likely to be cases where the parties are not dealing at arms’ length but are, rather, friends or relatives and where a resulting legal remedy is not intended. In English contract law there is a separate doctrine of “intention to create legal relations” that has led to many problems where the exchange of goods has not been recognised as a contract because the familiarity between the parties has been held to preclude any legal remedy. This is not relevant under libertarian law where the intention to exchange titles to property is an intention to create legal relations and where the exchange of a service for a service manifestly demonstrates an intention not to create such relations. The conferring of a property title demonstrates in the parties the desire for the security of the legitimacy to use force in order to gain the fulfilment of their ends. Where this is absent and there are no formal property dealings then it is reasonable for a court to conclude that such security was not required. Parties always have the option of concluding their arrangements with formal, enforceable titles if they deem the outcome of the contract to be valuable enough; where they do not then they should not expect the remedy of violent enforcement to come to their aid. Libertarian courts will therefore have no problem in recognising contracts between parties who are not dealing at arm’s length (i.e friends and relatives) where titles to property are transferred and any separate doctrine of intention to create legal relations is redundant. Where the provision of services is extended or gives the appearance of having a high monetary value libertarian courts may be willing to recognise an exchange of title if the performance of the service appears to give de facto exclusivity or possession to the recipient over the property that executes it. Again, we must stress that it is the entire conduct of the parties to the agreement that matters and not simply the words that are on the face of the contract (so, in other words, a knowledgeable party could not try to take advantage of an ignorant party by calling what is a transfer of title the performance of a service). Nevertheless, the granting of contractual liability in such cases is likely to be very limited in scope.

It follows from this that the fifth type of situation – the unilateral declaration of a performance of a service – also cannot be an enforceable contract. With regards to both the fourth and fifth situations we can see that any application of contract law to this situation would result in the most innocuous of agreements and declarations falling within the ambit of enforceable contracts. “I will help you with the shopping this afternoon”; “I will meet you in town at 7pm”; “I will clean the bathroom on Sunday”. Absent any demonstrable intention to create titles over property that perform these services the law has no business in these situations.

Breach of Contract and Contractual Remedies

While the focus on this series of essays is on the grounds on which legal liability is recognised and not on legal remedies, it is nevertheless appropriate to consider precisely what the law may compel a contracting party to do in the event that he defaults or breaches a contract. The first and, from the point of view of the receiving party, most ideal outcome is specific performance – full and final delivery of the property that is transferred by the contract. The property belongs to the receiving party and he has the right to compel its transfer. But once again, legal principles will be formed with regards to practical expediency as well as pure theory. Legal proceedings and legal recovery are, as we mentioned above, costly in their own right and very often the path pursued will be that which gives the greatest chance of recovery for the recipient with the lowest cost. In the first place, specific performance may not be available at all where the property has ceased to exist, or has been damaged or altered, a situation which is most likely in the case of perishable goods. In cases where the property has been transferred to a third party, or its location has moved considerably, the cost of recovery may render specific performance difficult and expensive3. In most cases where the property in its original form is no longer in the debtor’s possession, the easier outcome will be to sue for compensation or what has been come to be known in contemporary legal systems as damages – the monetary equivalent of the property that was due. Especially if there are proceeds from the sale of the property to a third party this might provide the greatest chance of recovery. Alternatively, the court may order seizure of other goods in the debtor’s possession to be sold for their monetary value in order to pay the necessary compensation. In English law there are several rationales for why damages should be paid and at least one of them will be prominent in a single case. First, to pay the so-called “reliance interest” of the recipient – i.e. so that the contract is effectively rescinded or “unscrambled” as a result of the breach and someone gets back what they put into the bargain; secondly, to pay the “expectation interest” – that which the receiving party expected to gain from the deal; and finally, restitutionary damages attempt to disgorge from the breaching party any profit he made as a result of the breach. Libertarian law largely transcends these categories. A party is entitled to recover the property that it is legally his as a result of the contract and nothing more; failing this, he may receive its monetary equivalent in damages. On occasions when he is the party receiving the property he will get what he hoped to gain; where he is the party transferring property he will get back what he originally had. Restitutionary cases may be more complex as, properly considered, they are really a part of the wider category of punitive damages. Any punitive or exemplary damages are unlikely to be awarded in the absence of an intention to breach a contract that renders the default as an act of fraud, a consideration we shall explore below.

Under the rule that a person is entitled to recover from a breach of contract only the property that is legally his as a result of that agreement, it should be clear that in most cases “consequential loss” or recovery of further expenditure incurred as a result of the contract is not available to the plaintiff. For example, a person hires an architect to design a building in return for a sum of £100K, and a further £500K is spent on building materials and hiring other services. Before the project can be completed the architect breaches his contract and the project is forced to a halt. The plaintiff can only recover from the architect the £100K paid across to him in return for his architectural services; he cannot recover the £500K spent on reliance of the architect’s performance. The additional £500K forms no part of the property specified in the contract with the architect. In these cases, the likely initiative taken by informed parties, at least, is to arrange the transfer of titles to property to account for all possible actions of each party. The contract with the architect might therefore state “A transfers to B £100K if B performs architectural services for A for project X; if B does not perform architectural services for A for project X then B will transfer to A 50% of the costs incurred by A for project X”. It is always possible, therefore, for parties to structure the property arrangements to account for any envisaged scenario. A court will then interpret the contract against the facts in order to determine and enforce a property arrangement in the result of default or dispute. It should be clear that this also permits penalty clauses – usually precluded in English contract law – to be established in contracts. The contract with the architect could quite easily have said that B will transfer to A 200% of the costs of project X incurred by A in the event that A fails to perform his services. The insertion and acceptance of such clauses in contracts merely indicates the value that is placed on performance by each party and their eagerness to get their hands on each other’s property. Such arrangements are entirely consistent with libertarian property principles.

In sum, based upon both the considerations of theory and of practical expediency, we might state therefore that, under libertarian contract law, a contracting party has a primary obligation to pay the property that is the subject of the contract, and a secondary obligation to pay compensatory damages as an equivalent. This is subject to the further consideration of how, precisely, libertarian courts will classify the status of a defaulting debtor – is he, for example, a thief of what is now the property of the other contracting party and, thus, a criminal who should be subjected to some sort of punishment? Or does he bear something resembling civil liability in our contemporary legal systems and need only furnish compensation? Part of this difficulty stems from the classification of wrongs – that is, for a libertarian, breaches of the non-aggression principle – into crimes or torts. Rothbard, for example, practically abolishes the distinction, upgrading what in contemporary legal systems are described as “torts” (invasions of person and property) to “crimes”, and dismissing altogether the current legal categorisation of crimes as wrongs against the state4. However he then has to admit that all defaulting contractual parties, regardless of the circumstances, are “thieves” who have “stolen” the property of the other party. Faced with the conclusion that a defaulting debtor, who has been unable to pay because of mere hardship or unfortunate circumstances, should be thrown into debtors’ prison he merely states that this would be “beyond proportional punishment”5. This creates the confusing possibility that different legal responses can flow from the same grounds of legal liability. It is conceptually clearer, however, to recognise varying grounds of liability which individually begat uniform responses. As we shall argue in part four of our series there is a case to be made for retaining the distinction between criminal and tortious liability based upon the intention (as objectively viewed by the court) of the defaulting party. If his conduct indicates that he deliberately intended to abscond with the property that he owes (i.e. is a fraudster) then he should be regarded as a criminal and subject to higher sanction. If, on the other hand, he has done his level best to make ends meet and defaults simply because of poor business choices then it is more likely that he would be subject to the equivalent of civil liability. Libertarian legal systems are likely to recognise that it would be a travesty of justice to equate the two situations, and may go further and acknowledge gradations of liability between the two extremes. Unreliable and bad with financial affairs a person may be but this does mean that he should be branded as a dishonest thief who cares for nothing more than himself.

It is at this point where we can return to the consideration of punitive and restitutionary damages. Where a person has not intended to be in the position of being unable to pay the property to the debtor then these damages would clearly be unavailable. Similarly where the property under dispute was a small part of a much larger operation with legitimate property that earned a profit, it would be unjust to disgorge the entirety of the profit from the debtor. More difficult, however, is where the intention of the defaulting party has been to defraud the property owner or where the property has uniquely and with little aid earned a profit for the debtor. In these cases libertarian courts might recognise a punitive or restitutionary element in accordance with an accepted theory of punishment that is compatible with libertarian principles. Consideration of this is beyond the scope of this essay, but we must acknowledge its possibility. Finally, there is also the possibility that fraud or theft might void the entire contractual arrangement and the case will simply be one of a unilateral breach of the non-aggression principle by the defaulting party, i.e. a simply wrong rather than a breach of contract.

Minor Considerations

We can conclude this survey of the law of consent by turning our attention towards some minor considerations.

First of all, there should be no problem with third parties enforcing their rights to property that they acquire as a result of a contract between two other people. For example, A may agree with B that A will pay C £100 if B transfers a television set to A. If B so transfers the television set then title to the £100 is now properly C’s and C can sue for its delivery.

Second is the “problem” of so-called unfair contract terms. These are usually exclusion clauses that relieve the debtor of any excessive burden of liability in the event of a default. In principle there is nothing unjust, from a libertarian point of view, of such clauses if they are agreed to in the contract. All that they would do is specify with objective certainty where the property rights would lie should events X, Y or Z occur. From an economic view, such certainty is designed to avoid the costs of litigating or arbitrating a dispute should the debtor fail to perform. Thus we might say that such clauses grease the wheels of commerce so that every party knows where they stand in the event of a default and the result of every outcome can be ascertained. Particularly if the debtor is a large and complex concern such a corporation, open-ended or uncertain liability in just a single case may bring operations to a complete halt if that case is representative of the corporation’s entire customer base. There is, of course, the possibility that large and knowledgeable parties will include or exclude all manner of terms in the “small print” of a large contract in order to burden the other party. The only tool available to a libertarian court in order to strike these terms from the contract is to find that they were not incorporated as terms in the first place – i.e. they did not form part of the contract at all. Other than that such terms, in a libertarian world, will be subject to legal sanction. This does not mean, however, that there is absolutely no regulation at all of burdensome contractual liability. We are simply saying that the law – the enforcement of rights through violent measures – has no part of it. We must remember that law, legislation and force are the ways of the statist and that this is precisely what we wish to avoid in a libertarian world. Only those acts that breach the non-aggression principle may be subject to the force of law. Where acts do not do this – such as the inclusion of “unfair” terms in a freely accepted contract – then there are plenty of ways of regulating this through voluntary trade. The first is the competition of the marketplace itself. Traders whose standard terms are too harsh will lose out to those who offer laxer terms. Secondly, there is every possibility that contractual scrutiny will be undertaken by private consumer watchdogs and ratings agencies who will refuse to accredit or will otherwise highlight companies who fail to moderate their standard terms of contract. Regulation, in a libertarian world, does not take the form of force and violence but, rather, through better informing you of the options that you can choose. A libertarian legal system will not relieve you of your personal responsibility by voiding a contract that you entered freely but now deem to be “unfair”.

In this vein we can also consider misrepresentation. It should be clear that any representation that induces a party to enter a contract must itself be a term of the contract to the extent that it specifies the nature of the property being transferred. For example, X is induced to buy a washing machine from Y as a result of the inducement that it would “last ten years”. If it only lasts five years, then what can X do? In order to sue for a return of his money, the contract would have to specify that the property transferred was “a washing machine that would last ten years”. If the machine lasts only five years then Y has defaulted as he did not deliver the property that was the subject of the contract. On the other hand, if the contract only purported to transfer “a washing machine” then X has no remedy as a washing machine is precisely what he got. The fact that he relied upon Y’s statement that the machine would last ten years is irrelevant. Of course, guarantees, warranties and other collateral arrangements would serve to protect X in this situation and are perfectly compatible with a libertarian legal order.

Finally, space precludes us from considering many other interesting areas – such as implied terms (i.e. good faith), mistake, frustration of contract, and so on. However what we have expounded should be the general foundations of contract in a libertarian society.

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1For a detailed description and analysis of bases of contractual enforceability, see Randy E Barnett, A Consent Theory of Contract, 86 CLMLR 269.

2See Murray N Rothbard, The Ethics of Liberty, pp. 134-5.

3If the property has been transferred to a third party then a court may, of course, compel the third party to return the property to its rightful owner. Space precludes us from examining the justice of this outcome in detail here. Suffice it to say here that an individual cannot transfer to another person title to property that the former does not possess in the first place. Hence the third party receives no valid title.

4See Rothbard, p. 51, note 1; Murray N Rothbard, Law, Property Rights, and Air Pollution, Cato Journal 2, no. 1 (Spring 1982): 55-99, reprinted in Economic Controversies, pp. 367-418, at p. 409.

5Rothbard, Ethics, p. 144.

 

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

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

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

Legal Persons and Self-Ownership

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

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

Original Appropriation of Goods

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

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

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

Conclusion

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


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

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

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

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

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

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

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

What is a Law?

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

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

Law and Enforceability

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

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

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

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

Legal Systems

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

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

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

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

Law and Objectivity

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

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

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

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

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

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

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

A:       “Competing law courts”

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

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

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

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

Legislation or Judge Made Law?

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Climate Change and Social Rules

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

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

Let us start by outlining a few key assumptions:

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

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

Rights and Obligations

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

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

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

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

Humans and Nature

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

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

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

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

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

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

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

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

Conclusion

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

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

View the video version of this post.

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

The Scope of Moral Enquiry Part Three – The Ethics of Non-violence

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In parts one and two of this three part series we outlined the necessary conditions for morality to arise in the universe. We then proceeded to demonstrate how, in answer to conflicts that emerge from a condition of scarcity of means, morality, by the operation of logic, entails that each individual moral agent owns himself and can therefore be said to have self-ownership and the ownership of goods of which that person is the first user-occupier. From these rights we derive the non-aggression principle (NAP).

This third part of the series will explore the morality of non-violence. We will first consider the area of defence and enforcement which is the primary area that separates the NAP from other moral norms. We will then examine the widest implications of the NAP and demonstrate its ultimate justification, showing why some common objections to the NAP are groundless. We will then, in this light, examine the place of other moral norms and moral theories, concluding that these can only ever take effect non-violently. We will also suggest some non-violent remedies to situations which an individual may judge the behaviour of another to be immoral in spite of not violating the NAP. Finally we will speculate upon the content of non-violent norms that may emerge in a world in which the NAP is adhered to.

Defence and Enforcement

The crucial aspect of the NAP is that actions which violate it may themselves be repelled violently, i.e. physical defence may be used in order to enforce the NAP and to repel violent attack. We will demonstrate here why this is so and why such enforcement cannot be used for action that does not violate the NAP. We will not proceed with en elongated discussion of punishment, proportionality and nor also will we attempt to tortuously define defensive violence as somehow being “non-violent” or “reactionary violence” as opposed to “initiatory violence”. Rather, we must call a spade a spade and recognise defence for what it is – the initiation of the violent enforcement of one’s right to self-ownership, an act which does invade the self-ownership of the another person.

We will therefore confine ourselves to the simplest answer that if A attacks B, violating the latter’s right to self-ownership, then A has no grounds on which to demand that his own self-ownership be respected. For if he denies self-ownership to B then on what grounds can he reserve it for himself? In part two we noted how A cannot preserve self-ownership for himself and deny it to B; exactly the same principle is in operation here. A’s demonstrates through his act of violating B’s body that self-ownership does not exist. B may therefore repel A violently in order to assert his self-ownership without contradicting his claim to this right. It should be clear that B’s action can extend only so far as is necessary for enforcing his self-ownership. For if he proceeds beyond this point then he does so to a level where he is forcing A to meet B’s ends. For example, if A crosses the boundary of B’s property to punch him B can fight back to the point at which A is no longer violating B’s self-ownership. So if A is successfully returned to the confines of his own property, B cannot then proceed to grab a meat cleaver and run onto A’s property, chase him off that property and claim it for his own. B will likely, of course, assess the future threat from A as being heightened as a result of this experience and he is perfectly entitled to prepare additional defence mechanisms on his own property such as fences, locks or a security guard in addition to other non-violent remedies with which we shall deal below. It follows also that where A’s action is entirely non-violent and does not invade B in any way then A has given no denouncement to the right of self-ownership. B, therefore, has no right to violently cause A to do anything else.

We might also add that, as we explored in part two, a person who desires ownership of a good does so because he wishes to combine it with his labour to produce an end that is more valuable than the end that existed before. If he does not wish to carry out such a physical act then he simply regards the good as non-valuable and hence will make no claim of ownership. In other words, the concept of ownership is bound up integrally with physical occupation of the property. Any theory of ownership that did not grant a right to the owner the ability to sustain this physical occupation would be nonsensical.

The Character of Morality and the Ultimate Justification of Non-Violence

What has therefore been demonstrated thus far is that no person may violate the NAP and that such violations may be repelled physically by the violated party. This is a truth that is universal to all acting agents everywhere and anywhere (even, as we shall see below, in so-called “hard cases” or “lifeboat” situations).

In spite of the prolific nature of this truth it is, however, extremely important to realise its limitations. For while the NAP condemns all action that invades another individual’s person or property it does not, on the other hand, condone or morally sanctify all action that does not cause such a violation. Individuals have varying ends that they seek to meet and it does not follow simply that all action that is peaceful and voluntary should necessarily be tolerated, liked, welcomed, or embraced by anyone else. Indeed the NAP does not even say that all appropriation of previously ownerless matter is a good thing; it only says that it is not morally permissible to repel such action by the use of violence. These aspects we shall now explore in more detail by reference to a crucial element of morality – that it is a conflict solver between thinking, choosing and desiring beings. What will be demonstrated is that any moral theory that advocates violence completely obliterates this aspect and, hence, cannot properly be considered a moral theory at all.

We stated in part one that morality arises to resolve conflicts that emerge from a world of scarcity. For a human being to act, to express his choices motivated by his desires through action, is to discard lesser valued ends and to embrace more highly valued ends as a result of the scarcity of means. If we imagine a world without conflict between human beings then this entails each human being to feel the pain of intra-personal scarcity but not of interpersonal scarcity. Each human would use his own body and divest the goods which he came across as the first user-occupier from the ends which that human least desired to those that he desired more highly. But each human would do this in isolation – there would be no covetousness of other people’s bodies and the goods that other people have appropriated. Consequently, there would be no such thing as morality nor would its derivatives of rights and ownership arise as they would, in such a world, be utterly meaningless. Everyone would be a “self-owner” in a de facto sense but the concept would not be even considered de jure, its prescription serving no purpose at all1. Interpersonally, however, every human being has a choice as to how to behave in relation to the body or good of another – he can either not make another person’s body or good the object of his action, or he can make it the object of his action. There is no alternative. Or, to put it another way, a person must always act in relation to an object that another person deems himself to have appropriated or he must act in relation to matter that no other person deems himself to have appropriated2. Let us proceed to examine each of these two possibilities in detail.

If a person, A, chooses not to act in relation to a good that someone else, B, has first used or occupied then what can be deduced from such a choice? We could just stop short at saying, in a strict, praxeological sense, that A does not value this good. He does not care whether it is in its current state under B’s custody or in a different state and delivering a different end in his as there is no demonstrated preference through which to determine the contrary3 4. However, there is one more important aspect as well – that A has allowed B to retain full control of his actions, that is for the latter to bring his desires motivated by choices brought about by the necessity of scarcity into being through concrete action. We said in part one that the only agent that has moral responsibility and can therefore be said to behave either morally or immorally is one that possesses choice over its actions. Hence A, by not submitting B to violence and by not forcing the latter to do what A wants to do, permits B to retain the character of a moral agent. B remains morally responsible for his actions and such actions can, therefore, be examined through a moral lens. It therefore remains possible for A to criticise B’s action in regards to the latter’s person or property as being “immoral”, stating that B should have devoted the means that he owns to an end that A values more highly but B does not. This may be as simple as something as A having the opinion that B has too much money and should give some of it away to the poor. If B, free from violence and coercion, chooses not to so give then we can say that he has behaved either morally or immorally. We may conclude that he is selfish and evil, as A might, or that the alternative end to which he actually devoted the money was more morally justified than giving it to the poor. Alternatively B might, having been persuaded by A’s opinion, decide that yes, he should give some of his money to the poor and he proceeds to do this. What does this reveal? Once again, through voluntarily acting to set aside alternative ends to which the money could have been devoted, B expresses his highest preference, his most valuable outcome, to be that the poor should have his money. Any conflict over scarcity continues to be resolved as the highest ends of all parties expressed through action are in harmony. But also, as we are trying to stress here, because B has chosen this action, because it has not been enforced violently and he has not been made to do it, we can say that B behaved morally (or immorally if we think that there was a higher end to which his means could have been devoted).

What, however, happens in the latter situation, that is, where A chooses to act in relation to a good that B owns? Things are now markedly different. He acts because he values the good, he demonstrates through action that he wishes to devote it to an end that he, A, believes is more desirable than the end in which it is currently employed. But the problem is that B has also made the good the object of his action and he desires it to be in its current state (i.e. the state into which his (B’s) action put it) rather than the end to which A wishes to divert the good. The action of A is, therefore, the cause of what is now an interpersonal conflict of scarcity, a conflict manifest in the physical clash as both humans attempt to occupy the same piece of matter. In short, A behaves violently towards B. Let us say again that A wrestles from B money that the latter has and gives it to the poor. As A has not, in this situation, yielded to B’s self-ownership and B is not able to express his choice through action, B does not value A’s end of giving the money to the poor more highly than some other end. The result therefore is that the conflict isn’t resolved at all; rather it is actively provoked and sustained, the winner of the contest simply being who is the physically stronger. To state that it is “moral” for A to enforce “morality” – i.e. resolve a conflict over scarcity – of diverting money to the poor by a method – violence – that promotes conflict is an absurdity. For if B had desired to give his money to the poor then he would have done it voluntarily; there would have been no need for A to interject with force. The fact that force is used indicates that there is no resolution to conflicts at all – in B’s mind he would still prefer that he had his own money and so the highest valued ends of all parties are still disjointed. But there is an additional crucial aspect as well. For where B voluntarily gives or refuses to give money to the poor we can examine his action through a moral lens because he chose that action. But where he has not chosen an action – where he has been the victim of violence – then we cannot examine his action at all. In no way can we say that B, having had his money taken by A to be given to the poor, behaved morally, for he didn’t “behave” at all. He simply had to do what A told him to do and he had no choice in the matter. To subject someone to violence is, therefore, not to get them to behave morally; rather it is to completely deny them moral agency. People are treated no better than inanimate objects, like stones or water, subject to the laws of physics and the force initiated upon them by other people. Stating that B behaved morally when his money is taken to be given to the poor is to say that a knife behaves immorally when a person uses it to stab someone else, or that an apple behaves morally when someone gives it to me to eat. Indeed, to state that B behaves morally in this situation would require us to ascribe moral agency to every single inanimate object that happened to move. The only morality that can be questioned in such a case, therefore, is of A’s action not of B’s, and whether A is morally justified in using, forcibly, B’s person and property for ends that A deems as moral and proper and B does not5.

More emphatically, however, any moral theory that justifies the use of violence is not really a theory of moral behaviour at all – it is a theory of who should and who should not be a moral agent, of who should and who should be allowed to express their choices motivated by actions through desires and who should be relegated to the level of mere dead and unconscious matter. But to do this is to destroy the very reason for morality in the first place. As we explained in part one morality only arises in the universe because each of A and B are choosing, desiring, thinking, beings. If one of those two is demoted to the position of an inanimate object then there is no moral theory to speak of at all – either of the two that was the acting being would not be bound by interpersonal moral prescription because the other is simply not a person. In other words, to advocate that one is a moral agent and another is not means that one does not have to behave morally at all – another person can simply be used as ends for one’s own desires and purposes6. A person does not sit and talk to a potato explaining how it is moral and just for it to be eaten by that same person, nor does one try to rationally explain to one’s bed that it is good and proper for it to be slept in. So why does anyone who advocates violence bother to flesh out a moral theory in the first place? If other people are simply there to be used for the ends that you think are moral what is the point of reasoning this? To whom are you addressing your theory?

It might be objected that, rather than prescribing a blanket denial of a person’s moral agency, a moral theory will only specify certain situations in which that person may be subject to the violence of another; in other words a person can retain moral agency except in particular scenarios, some of which may have to be judged according to the facts. There are two problems with this. First, we are entitled to ask “what is the specific method for such adjudication of ‘the facts’ that will cause one party to retain moral agency and another to not do so and why is this method justified?” Secondly, the only reason why a moral theory would hold that a person is to be subjected to violence in one circumstance and not in another is because in the latter situation the person’s action is in accordance with the moral theory. It is still the case that the moral theory has attempted to prescribe my ends for me – just because I happen to agree with these ends and therefore proceed to do them voluntarily does not change the total infringement of my moral agency.

There are several crucial aspects, therefore, what we can summarise about the use of violence to enforce morality:

  • That an absence of violent actions means that each person’s highest end is met with the scarce means available to him; there is, therefore, no conflict of ends in a strict, praxeological sense;
  • To act in violation of the NAP does not resolve conflict; it simply enforces one person’s end on another person; the conflict is sustained and promoted, not resolved;
  • To subject someone to force is to deny them moral agency; in no way can the action of the violated party be subject to moral scrutiny;
  • That if one is to promote a theory of morality which states that morals can be enforced violently and hence deny moral agency then one has to explain why they need such a theory if the objects of their action are no better than dead, unconscious matter.

Government Action, Violent Enforcement of Morals and Common Objections to the NAP

In this light we must, therefore, proceed to examine all situations in which it is claimed that “morality” can be enforced violently. The prime subject of this examination is, of course, not the situation where A wants to take the property of B, but of all Government action. For while it is generally acknowledged that one person cannot simply take what another has or commit violence against another person, the mechanism of Government is still deemed to be the legitimate channel through which ends can be enforced violently (even though very few people recognise explicitly that violence is the necessary means of Government action).

Let us start with a simple, historical moral good – let’s say that a King believes that is a morally good thing for a subject to give a portion of his income to the King’s treasury so that the King can build a shrine such as a temple, church or pyramid. Or, to state the same more emphatically, the King believes that a subject should give some of his income to fund the shrine. He believes this because there is a scarcity of the means of achieving this end of building the shrine, in this case, money. If a subject gives his money voluntarily, with neither the application nor the threat of force, then what can be said about this? First, the subject, through such an action, demonstrates that the King having his income to build the shrine is the highest valued end to him. His action is therefore in harmony with the morals of the King and there is no conflict over the means that are the object of his action. But also, because he has chosen this course of action it can be said that he behaved morally – he exercised a choice over ends that was necessitated by the scarcity of means and this can be said to form an accord with the King’s moral proposition. But what if the subject does not wish to give a portion of his income to fund the King’s shrine and does not do so? The King might therefore say that he should force the subject to give up some of his wealth and the King, in turn, would spend it on constructing the shrine. But the result of this is entirely different. For now, the ends of all parties – the King and his subject – are not in harmony. The subject, deprived of his money, still does not want it to be given to the King. He may passively accept the outcome and realise that resistance is futile when faced with the sharp end of a sword; but it cannot be said that the conflict is resolved; if it had been then the subject would have acted voluntarily to give the money to the King. Indeed, he might actually be bitter and contemptuous and correspondingly less generous with his later, voluntary action. Indeed the subject may attempt to squirrel his funds away where they can’t be noticed and taken in the future, or his operations may vanish entirely underground if the confiscation becomes particularly onerous. More importantly, however, by inflicting force upon the subject the King cannot say that his subject behaved morally at all. The latter had no choice in the action of his money being transferred from him to the King and hence we cannot scrutinise such an action in relation to him. He was merely a tool, subject to the force that was applied to him; he displayed neither virtue nor vice, good nor evil, and can attract neither congratulation nor condemnation. But also, as the result of treating this man has rendered inert his moral agency, the relationship between him and the King is not one of a desiring, choosing, acting human being to another such human being; it is that of a piece of dead matter to a human, the King. But if this is so then there is no need for a moral theory at all as far as it concerns the subject. Why bother to construct a moral theory if this man is not a moral agent? If the man was a piece of dead matter, say an apple, and the King regarded it as good that he should eat the apple then the King would not construct a moral theory to say that the apple should “give itself” to him; the unconscious objects of one’s action are not subject to moral examination. The King will, of course, wrangle in his own mind as to whether he should devote the scarce resources at his disposal to acquiring the apple or to doing something else. But just as we said in part one there is no interpersonal moral consideration for his actions. There is nothing outside of himself and his own desires, choices and ends that tell him whether he should behave one way or the other because there is nothing outside of himself to instruct him so. For the King to subject another person to violence to achieve his ends is precisely to replicate this kind of relationship, that of human being to dead matter and hence the King’s attempts to justify his actions by reference to interpersonal morality are simply ridiculous. The end result, it should be clear, is that the King has simply substituted his own ends for those of his subject’s.

Let us now move on to a more contemporary example – that it is a moral good for the rich to help the poor, i.e. that a rich person should give some of his income to the poor. If the rich person does this voluntarily then he demonstrates that the poor having a portion of his income is the highest valued end to him. His action is therefore in harmony with the moral advocates and there is no conflict over the means that are the object of his action. But also, because he has chosen this it can be said that he behaved morally – he exercised a choice over ends that was necessitated by the scarcity of means and this can be said to form an accord with the moral proposition. But what if the rich person does not wish to give a portion of his income to the poor and does not do so? Our moral advocates therefore state that government should force him to give up some of his wealth and the government, in turn, gives it to the poor. But now, just as when the King forces his subject to give him a tribute to build a shrine, the ends of all parties are not in harmony. The rich man, deprived of his money, still does not want it to be given to the poor. Once again, just like the subject under the thumb of the King, the rich man may passively accept the outcome and realise that resistance is futile but it cannot be said that the conflict is resolved; if it had been he would have acted voluntarily to give the money to the poor. And, same again, he might actually be bitter and contemptuous and correspondingly less generous with his later, voluntary action. Whereas before he might have been persuaded to regard the genuine poor and needy as deserving and worthy of his attention, he might now, having been subjected to force, regard them as workshy layabouts. But again the more important consideration is that by subjecting the rich man to force we cannot say that he behaved morally. He had no choice in the action of his money being transferred from him to the poor and hence we cannot scrutinise such an action in relation to him. We can neither thank him nor criticise him for what he did because he didn’t actually do anything – he was simply made to hand over his money. And once again as the result of treating this man in such a way has rendered inert his moral agency, the relationship between him and the Government is not one of a desiring, choosing, acting human being to another such human being; it is simply that of a piece of dead matter to a human. And once again, no moral theory can arise from such a situation. Questions of morality can only arise from interpersonal conflicts of scarcity; but to treat someone like a non-person renders void and unnecessary these questions. The Government may justify its actions in its own mind just as any person might justify picking an apple off a tree to feed oneself. But there is no interpersonal, moral justification for these actions. If the apple had thoughts and feeling and desired to remain on the tree rather than be eaten we would say that the person, in plucking it from the tree and consuming it, has substituted his ends for those of the apple. This is precisely what the Government – or anyone – does when it violently wrestles money from another person.

It is in this light that we can comment on so-called “consequentialist” arguments against the NAP – that a strict adherence to the NAP could result in a worse set of consequences than a minor infringement. But the precise problem of morality is whose consequences should prevail – the only reason it arises is because one person wants to devote means to one set of ends and another person wishes to devote them to another set of ends. Any such measurement of “better” or “worse” ends is simply arbitrary as we cannot make interpersonal utility comparisons – we cannot say that one person values his ends “more” than another person values his own ends. But even if we could and we could say that one party values his ends less than another person does and the means to achieve them are wrestled from him, this would still be a loss to him that is not offset by any compensating gain to him. In his mind he loses outright – why should a “larger” gain to one, independent being justify violence that results in a “smaller” loss to another?

Indeed it is interesting to note that violence is universally (albeit only officially) condemned as immoral. Apart from the objective justification we offered for the NAP in part two, perhaps this is precisely because it is unconsciously realised that it reduces other human beings to mere unconscious objects. Other morals, however, are not so universal. One of the most interesting aspects of the history of ideology is that it is seldom one of “individualism” or “liberty” vs “collectivism”, but rather a history of one version of enforced collectivism versus another. Liberty always means the freedom of the individual to act how he chooses, whatever the substance of his choices may be and whatever the time and place. There are not different “versions” of liberty and any disagreements between libertarians, minarchists, anarchists, agorists, voluntaryists, etc. are generally theoretical debates over that which is an affront to liberty rather than over liberty per se7. However, when people advocate any form of violently enforced collective what they always mean is their version of the collective – that is how they want everybody else to behave, how they want to use everyone else and the product of everyone else’s labour for their ends8. But questions of “morality” arise precisely because people do not view the ends of others as being in harmony with their own. For if everyone believed in the supremacy of the Pope, or that the King’s bidding should be done, or in the führer prinzip, there would be no conflict over the scarcity of means. Everyone would willingly obey not because he was forced to abide by the rules of the collective but because he wanted to. Everyone’s highest valued ends would be in harmony with that of the collective and morality would serve no purpose in such a world as everyone would devote the scarce means available to the same ends, that of the collective. But because people do not value the ends of collective, because they have conflicting ends over which scarce means must be devoted, the moral dimension arises. To feel the need to justify ones version of collectivism morally is precisely because people do not agree with this version. To state that this version of collectivism should be enforced violently is simply to override everyone’s else’s ends and replace them with one’s own. This fact is not restricted to ancient battles between warring monarchs or religious sects; the very reason why we still persist with elections and debates is because the ends to which we should devote the scarce means available are not universally agreed upon. Majoritarianism is deemed to legitimate violent enforcement of ends, that is, that only the minority are treated as unconscious objects for the good of the majority. But the logic of all violently enforced collectivism is that one person, a king, president, emperor, sovereign, visionary or religious leader retains moral agency but everyone else is reduced to the level of unconscious matter. No two individuals will ever agree absolutely on every single issue unless they , quite literally, share the same mind and in every case, therefore, one person’s will must triumph over another. Democracy has simply the blurred the personalities at the top by making them interchangeable and endowing them with a veneer of legitimacy resulting from elections and constitutional arrangements such as the so-called “separation of powers”9.

This fact – that the violent enforcement of “morality” is simply substituting one person’s ends for another’s, preserving the moral agency of the violator and reducing the violated to the level of mere dead matter – must be applied not only to typical situations such as taxation and redistribution but also to seemingly “hard” cases or what are often called “lifeboat” situations. Indeed, a not uncommon response to the NAP is to demonstrate how its strict observance may lead to results that would be “worse” than the results that would follow from a comparatively “mild” contravention. A typical example is if one is faced with a choice of saving a greater number of lives at the expense of killing one innocent person. Surely it is better to kill one person than to allow so many innocents to die? The present author has dealt with this scenario in detail here but the main problem with this is the objective measurement of what is a “good” or “more desirable” outcome. Why should, in this case, the needs of more people trump that of one person? How can their desire to live be compared to his? What if they are all suicidal depressants whereas the one person has a great zest for life? Or what if they are all delinquent and unproductive layabouts whereas the individual innocent is a great pioneer and entrepreneur? Of what if the majority are evil dictators? Can we say in all of these cases that the majority should be favoured? But even if we could so measure, even if we could say that yes, these five people who will be saved want to live more than the single person wants to, the loss of the latter’s life is still a loss to him that is not offset by any compensating gain to him. Why should a “smaller” loss to him be trumped by a “larger” gain to others?

All of these difficult situations (such as a starving person taking some food that belongs to another person, the killing of innocents to eradicate or apprehend an assailant (colloquially known as “collateral damage”), or the forcing of a person to help a drowning child) have as a common feature the fact that one person or set of persons has a desire or a need that is met by the confiscation of the person or property of another10. Aside from the economic effects of granting rights to violate the NAP in such situations11, we must emphasise again that the problem with all objections to the NAP resting on consequentiality – the avoidance of bad consequences – is that morality is concerned with precisely whose consequences should take higher priority. Indeed all of these types of scenario tend focus on the apparent needs of the hungry, sick or drowning party and totally ignore the ends of the party who possesses the means. Why are his ends any more or less important than someone else’s? A mere assertion that is moral for one set of consequences to trump the other simply begs the question. But even if it is not possible to determine objectively which consequences are “better” by pondering hypothetical situations then is there an objectively identifiable method for determining which consequences should trump others in real situations? We’ve already explained that interpersonal utility comparisons cannot be made and that even if they could one still has to explain why a “small” loss to one is less important than a “larger” gain to another. If no such method exists then we must conclude that all infringements of the NAP are simply determined arbitrarily and are simply tantamount to one party being able – by force – to impose his ends on another party.

Indeed, there is a distinct emotional appeal about all such “lifeboat” situations – not only are they worded in such a way as to generate an emotional and empathetic response to the drowning baby, the starving child, or the sick old man, but interwoven is the widely held moral conviction that one should act to help one’s fellow human being. No doubt it is of a distinct advantage to the human race that we each possess the emotions of sympathy and empathy that urge us towards helping others, that we form emotive bonds of friendship and relationship that drive us towards selflessness rather than just trading under the division of labour and impassively procreating. But it does not follow from these things, however beneficial they may be, that people are endowed with violently enforceable rights and obligations to be helped, or to be sympathised with, or anything else. And even if we were to force a person to be the Good Samaritan we must conclude, in light of our analysis above, that this does not mean that he has behaved “morally” at all; for by being forced to help someone else he loses the character of a moral agent. One can only conclude that someone has behaved “morally” if he has chosen his action, otherwise he has simply been no different from a piece of unconscious matter.

The Non-Violent Enforcement of Morals

The foregoing analysis – stating that, even in the event of “lifeboat” situations, the NAP should not be violated – needs to be approached and understood with extreme caution. In the event that, for example, a person witnesses a drowning a child and he refuses to help that child, the fact that the NAP states that that individual cannot be forced to help that child does mean that it is a good thing that he does not help the child. Alternatively, if a person has mountains of food and a starving beggar on the verge of death appears at his door and is refused any food, we are not saying that such a refusal is a good thing. It is perfectly consistent to say that a person should do action X but should not be forced to so. And indeed, as we keep on stating, we can only say that such a person behaved morally or immorally as a result of his voluntary choice to do or refuse to do action X.

The confusion that is endemic through moral philosophy is the shared language of rights and obligations that flow from moral theories. There are two cardinal errors to which this leads. First, that it is almost always assumed that the possessor of a “right” can violently enforce that “right” against the person who holds the “obligation” should the latter refuse to do so voluntarily. But it does not follow simply from the fact that a moral theory posits that a person should or should not do something that such an act is violently enforceable. Indeed, as we pointed out above, there is simply no point to a moral theory if it results in violence as this simply eradicates the reason – the other party’s moral agency – for questions of morality to arise12. This language of rights and obligations posits an end state of the world – that if we say the poor have a right to a portion of the income of the rich and the poor then attain this money, there is no further moral advocacy as to what the poor should do with this money having received it (should they also give it away, for example?). A right loses its substance if it is not final or absolute. This leads to the second error which is that because a libertarian, or some other adherent of the NAP, states that a person has the “right” to the ownership of his own body and those goods of which he is the first user (or the first user’s successor in title to the goods through voluntary exchange), people assume from this language of rights and obligations that a libertarian believes that not only should the first user of a good have title of ownership to them but that also he should keep them for himself. This could not be more untrue. The whole point of granting someone ownership over goods is that they are free to dispose of them as they wish and this could include donating them to the poor. The key point that we are trying to explain in this essay it that is quite open to moral theories to posit that people have “rights” and “obligations” to do whatever with their property – all that libertarianism and adherence to the NAP states is that these moral actions must be voluntary and not enforced violently. Within that sphere of violence anyone is most welcome to develop any moral theory they wish and to make it as persuasive and endemic as he pleases. He just cannot force people to adhere to the ends of his moral prescription13.

Therefore, any moral theory that talks of rights and obligations that breach the NAP is not only invalid but rather, it is no moral theory at all. Moral theories can only arise between thinking, acting and choosing beings and to deny a person these qualities through violence is to render inert the need for a moral theory. All language of rights and obligations must be adhered to and enforced not through violent means but through non-violent means.

Does this understanding, then, run us into a brick wall – that if someone can be said to have a moral right or a moral obligation and if these cannot be enforced violently, then aren’t they useless? What is the point of having a right if you can’t make he who has the obligation fulfil the substance of that right? Not at all, for there is no prescription at all in the NAP against using non-violent enforcement, enforcement that preserves the moral agency of another individual. In other words, to influence another’s behaviour by exercising one’s right to self-ownership and to ownership of the property that one possesses in accordance with the NAP14. For example, as we have been indicating throughout, oral persuasion and conversation is one of the simplest of these methods – that you can bring a person round to believing that he should act in accordance with the ends that you believe to be moral. In short, he comes to value the same ends as you with the scarce means at his disposal. Only then, as we elaborated above, can we judge his behaviour as being moral or immoral. Another example may be of the “lifeboat” variety – suppose that an individual, A, witnesses another person, B, walking idly by a drowning child of whom B is aware; B does nothing to help and the child drowns. A may use his empathetic understanding of the situation to judge the child’s need of B’s means to help as being more pressing than B’s needs and that, consequently, B should have helped. A does not have the right to force B to act; there is no standard of proof that permits him to force, violently, his interpretation of the situation upon B. But A can, however, act in accordance with the NAP as a result of B’s behaviour. He might boycott B and refuse association with him; secondly, he might publicise B’s deliberate inaction so that other people may decide to refuse to associate with him. Such action does not rob B of anything that he values as such, but it does narrow the scope of his potential future action if people refuse to trade with him. Indeed, threats by A of such non-violent actions may cause B to help the child to avoid their consequences. Of course, other people, say C, D and E, may judge the situation differently and conclude that B could not have helped the child or there was indeed a more pressing end that B had to devote his means to as opposed to the end of saving the child, however tragic the latter situation might have been. Under these circumstances C, D and E might be perfectly happy to continue association with D or may publicly congratulate him for his choice. Non-violent enforcement of one’s moral beliefs therefore permits an individual to express his own values, to divert his means to the highest valued ends as he appraises them without forcing others to adhere to them. Hence, other are given the opportunity to voluntarily act in accordance with your values, but they may disagree. Only by acting non-violently is it possible for everyone’s values to express themselves, for the scarce means available to be devoted to their highest valued ends, without conflict.

Conversely, while, in accordance with the NAP, another person cannot force you to adhere to his moral sentiments, it does not follow that this person should, in turn, be forced to celebrate or condone your moral choices with his own person and property. If A is homosexual and B believes homosexuality to be immoral then B is not entitled to violently force A to refrain from homosexual acts. A is entitled to remain unmolested and free to use his property and person as he sees fit. But it does not mean that A can force B to associate with him in spite of his homosexuality. B has to tolerate the existence of A’s homosexuality but B cannot be forced to use his own property and person to further the ends of A’s homosexual lifestyle. So if (to take an example of a real conflict) B is a Christian guest house owner and A wishes to stay at B’s guest house with his same-sex partner, then B is quite within his rights to turn A and his partner away. B’s beliefs may be bigoted and ignorant, but he cannot be forced to adhere to the alternative. The guest house is B’s property and he is, by virtue of his position as the first owner or his voluntary successor in title, permitted to dispose of that property as he sees fit. If A could force a relationship of trade upon B, i.e. force an association, then that is tantamount to the enslavement of B for A’s ends15.

Might it be objected that, in certain cases, there is too much of a fine line between aggression and non-aggression? While a case of a man punching another in the face is clearly an act of aggression (unless the act was one of self-defence) and merely quietly telling him to go away is not, are there not at least some difficult cases where we cannot tell whether the act is aggressive or not? Talking to a person is not aggressive but would blasting loud music at his property from your own property not be so? Both amount to the same thing – the initiation of sound waves from one person’s property to another. Yet it would be difficult to suggest that the former case was an act of aggression and to argue the opposite. What is the cut-off point? Is there a certain measure of sound waves one side of which may be said to be aggressive and the other side of which may be said to non-aggressive? This is an issue that will be dealt with in a later essay on a libertarian legal system. Suffice it to say for the moment, however, that it is important not to confuse the validity of a principle with the determination of whether such a principle should be applied according to the facts. To take another example, we can assert that, in accordance with the non-aggression principle, that a valid contract is one where the parties each voluntarily agree to transfer title to property. This voluntary arrangement is entirely in their heads – only they know whether or not they actually intend to transfer title. Yet the resulting rights to the transferred property need to be publically agreed and acknowledged, for not only do people need to know whether a piece is property is in fact owned they also need to know by whom it is owned if they too wish to make an offer of trade at a later time16. It is not, therefore, enough that two parties to a contract intended within their own minds to exchange titles to property; rather they must have held themselves out as intending to do so. In other words, their actions must demonstrate objectively that they held the intention to transfer. Precisely which actions are necessary to demonstrate this intention will, as will be shown in the later essay on legal systems, be a matter for local custom, convention, and ultimately for competing dispute settlement services such as privately competing arbitrators and courts. Exactly the same will apply in determining precisely where and in which situations the NAP is violated. Remember that morality arises as a result of conflicts that are generated from the fact of scarcity, but this scarcity exists not in the condition of physical matter per se, but in the minds of the acting individuals. One therefore has to look not to the precise and minute arrangements of physical matter down to the atomic level but to the actions of the individuals involved in seeking to use matter to value their ends. Only their actions will reveal if there was in fact a conflict and it would be up for private libertarian legal systems to judge whether, on these facts, there was a violation of the NAP. Complex examples of these types of situation will be examined and explained in the future essay on libertarian legal systems.

The Morals of a Libertarian Society

It is often asserted that a pure free market or, rather, what we would call a society that acts entirely in accordance with the NAP, would engender nothing but selfishness and self-centredness, everyone seeking to maximise his own, personal gain without uttering a thought or care for anyone else. Alternatively, given that libertarians consistently argue for the legalisation of recreational drug use, one might think that we’ll just descend into a race of putrefying pot smokers. It is highly unlikely, however, that these would be the moral creeds that would flourish in a free society. We must recognise, of course, that no one can be violently prevented from doing whatever it is that they want so long as it does not inflict violence against another person or his property. But the institution of private property itself engenders a certain body of moral attitudes that are contrary to selfishness and laziness. In a free society one can only gain wealth by free exchange and one can only participate in free exchange if one is able to serve the needs of consumers. This alone, of course, requires that one benefit one’s fellow human. But it also requires several other qualities – empathy and understanding; patience, prudence and foresight; and the propensity to save and invest rather than consume and waste. Wealth will accumulate to all of those who possess these abilities and hence these are the qualities that will be encouraged. Furthermore, such people who accumulate wealth by serving their fellow humans will be more able to support and raise a family. To the extent that such qualities as we just outlined are genetically inherited then these are precisely the qualities that will be promoted in the human race. And even if they are not then parental guidance is more likely to encourage them than not – how many successful entrepreneurs would be happy to leave the fruits of their life’s work to a lazy, wasteful and selfish child? People are, therefore, most welcome to sit around and smoke pot all day and people may well set up different communities that adhere to values other than those that we just outlined. But we have to wonder from precisely where their resources for doing so will come and such activities will, therefore, remain relatively fringe.

Moreover, without the support of any violently funded social safety net in the event of illness and unemployment, the cultivation of the institutions of kinship, friendship and community becomes much more important to each individual. The free market is forever being criticised for destroying the traditional family and for squirreling away individuals into an increasingly atomised existence. However, these are the effects not of the free market but of the welfare state; for when the Government is there to give you a helping hand when you need it these traditional institutions become less important. Indeed the very operation of the welfare state destroys any personal contact between donor and recipient and no welfare is dependent upon one’s love, trust, respect for the other so these qualities, together with any empathy and sympathy, will simply vanish and, as we noted above, are more likely to be replaced by bitterness and resentment. Finally we might also add that the hitherto most productive and relatively free period of human history – the nineteenth to early twentieth centuries – was the cradle of not only the formal, charitable organisation such as The Salvation Army, the YMCA, the Scout Movement, The Rotary Club, etc. but also of mutual and self-help entities.

In terms of the morals that will be promoted in a free society, therefore, far from advocating selfishness and idleness such a society will prove to be a relatively “conservative” and “charitable” one; conservative not in the sense of preserving the wealth and status of the existing elite or aristocracy but in the particular social morals that are, today, associated with that movement.

Conclusion

What has therefore been revealed in this three-part survey is, specifically, the scope of moral enquiry, an enquiry that can be restricted to only a specific set of circumstances that exist in the universe. To address situations where these circumstances are not present with reference to morality is an error. In summary:

  • Questions of morality arise between beings that choose to devote means through actions towards ends, as a result of an interpersonal conflict generated by the scarcity of means;
  • That each of these beings has the right to self-ownership and the right to the goods of which he is the first user-occupier; these rights are violently enforceable;
  • That a person’s action can only be examined by reference to morality if that action has been chosen voluntarily;
  • That to enforce “moral” ends violently upon another moral agent or his property is not only to replace that agent’s ends for one own ends but to destroy his character as a moral agent; hence, to advocate such action by reference to a moral theory is incongruous and absurd;
  • Consequently, “moral” ends can only be enforced by non-violent methods;
  • That a society that respects the NAP will, while not violently enforcing any moral standards, will most likely nurture the ends of family, friendship, kinship, and relatively “conservative” social morals.

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1There would also be no exchange and therefore no division of labour as exchange presupposes one’s right over the objects that are offered in exchange together with the rights of another over the goods that one wishes to acquire.

2We highlighted in part two how this is determined by the minds of the acting individuals. Two people, for example, can each sit on a park bench and the latecomer of the two may, by external observation, appear to appropriate the goods that were occupied by the earlier occupier. However, this may not be the case in the mind of the latter and his ends may be delivered in full by his occupation of only one half of the bench on which he is actually sitting, with the occupation of the other half being inconsequential to him.

3We have already examined in part two how B’s original possession gives rise to no dispute with any other human being as all of the rest of the world have demonstrated, through their absence of action in relation to the good, that it is valueless. B’s original act of appropriation therefore yielded no moral conundrum and there is nothing, short of the intrapersonal conflicts he feels over which ends to pursue with the means available to him, that informed him whether he should appropriate the good or should not.

4Another possibility is that A does value the good and would very much like to have it, except that he doesn’t make it the object of his action as he ranks the value of having the good as lower than the act of resisting the urge to appropriate it from B’s hands. In short, while he would gladly have it, he recognises B’s moral claim to the good resulting from the latter’s self-ownership, from which in turn is derived the NAP. This is not in and of itself a justification for the NAP as it would simply beg the question but it is illustrative of how adherence to the NAP avoids conflicts and physical clashes.

5It should already be clear that the net effect of using force simply allows one person to achieve his ends at the expense of another person, the latter reduced to a mere unconscious, unthinking, inanimate object.

6Furthermore, any theory that permits violence runs into a distinct epistemological problem – how do we know who should be the moral agents and who should not be? Who should be the choosers and doers and who should be no more important than rocks and sticks? But to merely pose this questions is to run into the same problem as posing the question “should I own my own body?” that we examined in part two.

7Minarchists, for example, see a minimal state as being necessary for the preservation of liberty whereas anarchists believe that even a minimal state is anti-libertarian; some schools of left-libertarianism believe that private property is oppressive whereas Rothbardians would hold it as the foundation of freedom.

8As Mises puts it: “The unanimous approval of planning by our contemporaries is only apparent. The supporters of planning disagree with regard to their plans. They agree only in the refutation of the plans brought forward by other people. Many popular fallacies concerning socialism are due to the mis­taken belief that all friends of socialism advocate the same system. On the contrary, every socialist wants his own socialism, not the other fellow’s. He disputes the other socialists’ right to call them­selves socialists. In the eyes of Stalin the Mensheviks and the Trotskyists are not socialists but traitors, and vice versa. The Marxians call the Nazis supporters of capitalism; the Nazis call the Marxians supporters of Jewish capital. If a man says socialism, or planning, he always has in view his own brand of socialism, his own plan. Thus planning does not in fact mean preparedness to coöperate peacefully. It means conflict.” Ludwig von Mises, Omnipotent Government – The Rise of the Total State and Total War, pp 252-3.

9Nevertheless even as we progress further upwards of the food chain in, say, a parliamentary democracy we can see the exclusion of further individuals from the sphere of moral agency until you are left with just the will of a single person or a bare handful of individuals. The populace votes for “representatives” to enforce violence in their “interests” once every four or five years; the representatives with the largest majority in parliament usually form a government but only selected representatives are called upon to serve as ministers of the executive; this selection is normally chosen by the Prime Minister and will be made in line with his appraisal of the candidate’s ability to serve the Prime Minister’s political and legislative ends. Generally speaking, therefore, while he remains in office the Prime Minister will hold most of the power, perhaps also with a handful of the other top ministers.

10In all of these cases it should be added, incidentally, that those who advocate “minor” violations do not usually mean that the party in need should directly take the property he desires but rather that the government will take it and then use it to fulfil the so-called need. The ability of government to do this in the most efficient manner is, of course, an important but separate issue.

11If A is, say, granted the right to the food of B when A is hungry then the benefit to A of producing food himself is lowered while the benefit of being hungry is raised (as it is met with the reward of free food); the benefit of B to producing food is lowered as it will be confiscated from him when someone else needs it. The overall result is more hunger and less food with which to end it.

12We might also point out that there is no end to the number of contradictions in the violent enforcement of moral taboos and vices. Recreational drugs are almost always banned, but tobacco, in spite of repeated Government incursions into the freedom to use them, is not. One is not allowed to drive under the age of seventeen but when it comes to granting sexual consent one only has to be sixteen (and after having had the ability to drive all over the country and having had all manner of depraved sex as he has stamina for a person must still wait a further year until he is eighteen – or a further four years until he is twenty-one – to purchase his first drop of alcohol.

13It will help, then, to further clarify some terminology of rights and obligations in order to resolve conceptual confusion:

Self-ownership         The right to physically control one’s body; violently enforceable;

Ownership               The right to control the physical goods of which a person is the first user, or those goods acquired through voluntary trade; violently enforceable;

Property                 A good in which one has ownership; alternatively, the term is interchangeable with ownership;

Moral Right              The possessor of a moral benefit resulting from a moral theory; not violently enforceable;

Moral Obligation       The possessor of a moral burden resulting from a moral theory; not violently enforceable and compliance with the moral theory must be voluntary.

14The very word “enforcement” sounds like a misnomer as it contains the very paragon of violence – force. This has been part of the stem of confusion that has surrounded the language of rights and obligations.

15One might point out, however, that the free market in fact provides a powerful incentive against such discrimination. For while it is true that the free market does not ban any discriminatory acts it does, however, impose a penalty upon them. For example, a racist, anti-black employer has to choose between a candidate for employment who is black and another who is white. If the white candidate is genuinely the best for the job and is hired then the employer’s racism is inconsequential; if, however, the black man is the best for the job but the employer hires the white man anyway then the employer has not hired the best person. The white man will be less productive and learn less revenue than the black man, who will now take his talent and offer it to a competitor. The employer’s enterprise will therefore be staffed with racially identical but less competent staff and will simply be less able to serve the needs of customers. The employer therefore has to balance his racism against the loss of revenue incurred by maintaining an all-white workforce. As the division of labour increases and the structure of production involves so many more layers and geographical locations, trade becomes increasingly less personal and the specific characteristics of a particular person in the chain of production become less important (if ever they were important) to the consumer. As a result, discriminatory practices in the business are simply a short cut to loss of revenue and bankruptcy.

16It is for this reason that the term “private property” is something of a misnomer; for in order for a piece of private property to be respected knowledge of one’s title to it must be publically disseminated. Private ownership of property is more accurate.

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