Immigration

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The subject of immigration is keenly debated both within libertarian circles and in the mainstream, having been an important issue in the British referendum to leave or remain in the European Union on June 23rd and also in the forthcoming US Presidential election in November. This essay will outline the core libertarian theory concerning immigration before examining the key area for contention among libertarians – whether, in a world populated by states, any particular state should restrict or otherwise control movements across the border by persons who are not considered to be citizens of that particular state and whether this is in accordance with libertarian theory. We will also explore the additional question, assuming the same, worldwide condition of individual states, of which ways immigration can be said to be a “good” thing and in which ways it can said to be a “bad” thing.

In strict libertarian theory there is no treatment of immigration separate from the general libertarian approach to private property. In a libertarian world all pieces of homesteaded land would be owned by private individuals. Although the owners of neighbouring or otherwise closely situated pieces of land may share a common language, ethnicity and culture, there would be no legally defined national borders; all we would have are the borders, or rather, the boundaries of each parcel of private property marking the point where one person’s ownership ends and another person’s begins. Who, how and when other individuals cross these borders is a private matter for the property owner. It is his property and he can welcome and exclude whomever he likes and on whichever terms he likes. If the property in question is his home then his closest, most immediate family, who may also live there, are likely to have unrestricted access; more distant family and friends may be granted access at mutually agreeable times when they wish to see each other; a lodger will have access governed by a tenancy or licence agreement; and “handymen” or contractors may be granted temporary access to carry out certain work that the owner pays them to undertake. Everybody else in the world, on the other hand, is likely to be excluded. At no point, prior to any agreement or contract with the owner, does any person have a legal right to cross the border of another person’s property. An uninvited crossing is, in libertarian theory, defined as unlawful, aggressive behaviour and may be met legitimately with physical resistance. The only places where people could wander wherever they please, except for their own property, would be onto un-homesteaded or ownerless land as only in this condition would they be undertaking an action which does not interfere with the prior rights of another individual.

In a world populated by states, however, there are not just borders or boundaries between privately owned pieces of land; rather, there are borders between whole swathes of territory which form the landmass of the states. A particular stretch of land immediately on one of these borders need not be privately owned – it may be publicly owned if it is a road or a park or even ownerless if it is, say, an unkempt meadow (although the government will, of course, claim ownership over all un-homesteaded land). In such a world the question concerning immigration would not be whether immigrants would have the right to enter your home or, say, your privately owned business premises; not even the staunchest supporter of immigration contends that this should be the case and if we assume, as minarchists do, that the state has a legitimate responsibility to protect individual parcels of privately owned property from uninvited access by either foreign or domestic individuals then this stance is perfectly in accordance with libertarian theory. Rather, the issue concerns whether the state should grant, without question, prospective immigrants a right to enter the territory of the state at certain, designated  points on the border into publicly owned or ownerless territory that the state nevertheless claims is within its jurisdiction. This, necessarily, raises the further question of whether successful immigrants would be at liberty to access all publicly owned territory, such as roads, to use publicly funded facilities and to claim publicly funded welfare.

In this imperfect world of state borders the question we as libertarians have to answer boils down to how, in libertarian theory, we should treat the ownership of publicly owned land. If the government permits any foreigner to cross the border into publicly owned land can such an arrangement be equivocated with, or approximated to, an uninvited, physical invasion of owned property, in which case it would not be permitted? Or is it an action that is more equivalent to crossing into ownerless or un-homesteaded land and thus does not violate the rights of an existing owner? If we lean towards the first possibility then the resulting situation would be one of “open borders” – the de facto right of any foreigner to cross into publicly owned or ownerless territory of another state. However, if the answer is no then it does not follow that closed borders would result – it is only a quasi-invasion if foreigners cross uninvited. To listen to the mainstream arguments one would be forgiven for thinking that the immigration question needs to be met by an all or nothing answer – it is apparently a contest between liberals, or self-styled “progressives”, clamouring for fully porous borders on the one hand versus conservative, racist bigots who supposedly want to keep everyone out. We reject this false dichotomy and recognise that it is quite possible to be in favour of permitted, regulated immigration – allowing some people to cross the border as immigrants to come and live and work in the territory of the state while denying that privilege to others.

The most convincing reconciliation of this situation with libertarian theory is arrived at by asking a simple question. If the state was to dissolve itself today who, if anyone, would have the strongest ownership claim over the publicly owned land to which immigrants would gain access if they were permitted to cross the border? It is doubtful that such land can be construed convincingly as unowned given that it contains significant infrastructure – roads, railways, utility networks and so on – that have been deliberately engineered, bringing the land into a developed condition that is far from its natural, ownerless state. This infrastructure was paid for by the domestic, tax paying citizens for the benefit of domestic, tax paying citizens, and was not paid for by foreigners who have not been tax payers. It follows, therefore, that the strongest ownership claims to publicly owned land reside with the domestic, tax paying citizens of the state. As long as, therefore, the state owns and operates this land on behalf of the tax paying citizens it should be construed as the owned property of those citizens, to which non-owners can be excluded from entry in just the same way as a house owner may exclude strangers from his house. Thus it is reasonable to suggest that foreigners do not have a legitimate right to cross a state border. Moreover, if the opposite was true and libertarian theory was construed publicly owned land as ownerless then it would seemingly allow foreigners, or indeed, anyone, to homestead this land and take it out of public ownership. The suggestion that one could homestead a major road to the exclusion of the rights of those who were forced, by the state, to pay for that road’s construction, is clearly absurd.

An objection to this suggestion is that non-taxpaying domestic citizens, such as low earners and children, will be permitted access to the publicly funded infrastructure. If we are ascribing ownership of public assets to those who fund them through tax contributions then shouldn’t these domestic, non-taxpayers be excluded too? In the first place we could suggest that the taxpaying citizens – i.e. the taxpaying parents of children and taxpaying businesses who need customers to access them via public roads – have extended a quasi-invitation to non-taxpayers to use the publicly funded infrastructure. However, before we begin to contort our analogy in a tortuous fashion we have to remember that no answer we can give in this regard is going to be perfect. A world populated by states is not a perfect situation with which libertarian theory has to deal. Libertarian theory properly excludes the state entirely; however, if we have to suffer the state in some form then there is an impetus upon us to make it function in the most liberty-oriented way, an endeavour we can only accomplish by approximating ownership as it would be in a stateless society rather than by replicating it entirely. Moreover, it is probably not possible to distinguish taxpaying citizens from non-taxpayers on a public highway, whereas it is eminently possible to exclude foreigners at a frontier.

If we maintain this theme of attempting to approximate ownership in a stateless society we can also determine the situations where foreigners would be permitted to cross a border. As we noted earlier, in libertarian theory owners may invite non-owners onto their property as and when they see fit and upon whichever terms are agreed. Such an entry would not then be an invasion. The most likely way that such invitations could be extended to cross state borders would be if a foreigner is offered employment within the territory of the state, or married into a domestic family. Alternatively, perhaps, a foreigner may purchase property that is within the territory of the state. Critically, however, these invitations should initiate from private sources and private exchanges, not from quota systems or other arbitrary rules and restrictions emanating from the state. Not only does this serve more convincingly our approximation of public ownership with private ownership, but there are also sound economic reasons for stating that this should be the case. If, for example, an invitation to cross the border is dependent upon an offer of employment from a private company or individual it demonstrates that the skills possessed by the immigrant are genuinely in short supply within the domestic population as perceived by the real wealth creators. The immigrant will arrive and will be integrated into the employer’s workforce immediately, co-operating with the existing, domestic co-workers in the production of goods and services. This is less likely to exist with either unlimited immigration, or immigration defined according to government direction, where the influx of immigrants may simply be creating a greater supply of labour which pushes down the wages of existing, domestic workers, and is likely to increase racial tension and xenophobia.

Indeed, the economic cases for and against immigration are rarely stated correctly in the mainstream debate and so it is worth our while to concentrate on these for a moment. Those who advocate open borders will be keen to point out that immigrants bring productivity and skills which serve to increase the standard of living of the indigenous population. Those who argue for restriction, on the other hand, will stress that, in fact, an influx of foreign workers simply competes with domestic workers for employment opportunities, sowing the impression that foreigners are “stealing our jobs”. Both points of view contain kernels of truth yet neither is valid in all situations. Whether or not immigration is a benefit or a burden concerns whether labour and capital goods are balanced in a particular location. The applicable economic theorem in this regard is the law of returns, which states that if the quantity of a factor of production is increased while the quantities of the complementary factors are held constant, there will come a point when the increases will produce diminishing returns and, eventually, no returns at all. For example, a farmer who wishes to grow crops may take land, seeds, water and fertiliser as his factors of production. If he holds the quantity of land, seeds and water constant while increasing the quantity of fertiliser then at first he will experience increasing crop yields per additional unit of fertiliser he deploys. Eventually, however, further increases of fertiliser will produce fewer and fewer crops per additional unit deployed without further increases in land, water and seeds, until eventually there will be no additional returns at all. Finally, of course, production will cease altogether when the land becomes buried under a mountain of fertiliser. If, on the other hand, there are increases in the quantities of complementary factors of production in addition to increases in the quantity of fertiliser, it is possible for the farmer to experience an increase in crop yields per additional unit of fertiliser deployed. Exactly the same is true when the increased factor is not fertiliser on a farm, but is, rather, human labour. If labour is increased, through population increases, but it is not possible to increase the complementary factors of production then the increase in population will simply result in diminishing returns and an overall reduction of per capita real incomes. This will be particularly acute if there is a sudden influx of a particular type of labourer that requires specific types of complementary goods in order to be productive. If there is an increase in low-skilled, manual labourers then a given territory also needs to have the additional factories, machines, tools and equipment for them to use. If it does not then the existing stock of such items simply has to be used more intensively by a greater number of labourers, which, if the increase in labour is left unchecked, is the recipe for diminishing returns. There is no point in shipping in a boatload of carpenters if there isn’t enough timber for them to work on, or if there are not enough workshops to house them; it is futile to welcome more workers onto a car assembly line if the assembly line itself has not been built, or if there is a shortage of steel or aluminium. In principle, at least, this extends to highly skilled labour as well. If a state brings in from overseas a load of doctors then the additional hospitals, surgeries and medical equipment have to be available too. Obviously the situation can become dire if the incoming population cannot work at all – for example, if there are a lot of children suddenly entering a territory, or those otherwise demanding educational services, then there needs to be the additional schools and colleges, otherwise existing class sizes simply swell and the quality of education (i.e. the “returns” on inputs into education services) diminishes. All of these additional capital goods – the machines, the factories, the equipment, the raw materials and so on – are demanded right from the moment that the immigrants arrive and seek work. However, their availability is not immediate as the production of capital goods requires both time and, more importantly, savings. Therefore, if the labour is specific, i.e. specialised to only one kind of occupation, then immigration will serve simply to increase the supply of labour applied to the relevant capital goods, thus pushing down wage rates for the domestic population. If, on the other hand, the skillset of the immigrant labour is unspecific then it may be possible to put them to work in creating these capital goods – i.e. building the very factories and tools they need to increase their productivity. However, capital goods do not yield an increase in productivity until they are completed and if the immigrant population is to go to the effort of creating them then they need consumer goods to sustain them during this phase of construction, a phase which may take a number of years before the additional capital goods are able to increase the supply of consumer goods. The only source of the latter is the prior production of the indigenous population. In other words, the domestic citizens have to reduce their level of consumption today in order to save and fund the additional production of capital goods, thus lowering their standard of living. The only way to induce this voluntarily is to raise interest rates so that more people save out of their current income. However, higher interest rates are precisely what are discouraged by spendthrift governments and economists hypnotised by Keynesianism, who do everything that they can to lower interest rates and decrease the incentive to save. The domestic population therefore continues to maintain its preference for consumption over saving and so all that they see is higher prices for the very consumer goods they wish to buy and lots more people from far flung lands wanting to buy them. It was the understanding of this whole phenomenon which formed the basis of Malthusianism – that if population increases outstrip gains in productivity then society becomes, overall, poorer. For the indigenous population of a given state, the incoming population simply becomes competing consumers of existing, or a barely increasing stock, of goods and services. Indeed, some libertarians have pointed out that this may be the aim of the state in the first place – to bring in more welfare parasites and weaken the wealth and power of the indigenous population, thus expanding the size and scope of government.

On the other hand, it is clear that if there has been an increase in the non-human factors of production but not an increase in labour then these factors too will be subject to the same law, the law of returns. In other words, an increasing number of machines, tools and factories will be used by the same number of labourers, with the result that the latter become spread out more thinly over a burgeoning supply of capital goods. In this instance, an increase in population is precisely what is needed to increase productivity and to make use of the additional capital stock. So, for example, if an empty factory with nobody to operate it, and machines and tools lying idle, is filled quickly by immigrant workers then productivity can rise on account of the fact that there has been a commensurate increase in labour and capital goods. Such a situation is not unheard of in areas where there are extremely favourable reasons for creating capital goods – low tax rates, strong private property rights, good transport links, and good supplies of natural resources – except for a sufficient supply of willing labour. For example, a mining business has to open up shop where the ore it wishes to mine is located. The labour must come to the ore in order to ensure any productivity from the mine. Going back to what we said earlier, if there is an under or oversupply of either labour or resources, only private business owners and entrepreneurs should make decisions as to what moves where – whether labour should be moved to where resources are or whether resources should be moved to where labour is – for only they are in a position to judge, through pricing, profit and loss, which is the most cost effective solution in ameliorating the imbalance between labour and capital goods. Any direct action by the state in this regard will simply create surpluses and shortages either of labour or of capital goods in different areas, as government management of anything always does. Indeed, in a previous essay on “Overpopulation”, the present author argued that increasing population is generally not a concern, from an economic point of view, under conditions of an unmolested division of labour; but it does become a very acute problem when government interferes in population levels, especially in specific areas. In particular, if we look at the two most extreme positions the state could take with regards to immigration – a policy of completely open borders (or even an active pursuit of higher immigration numbers) on the one hand, and a policy of completely closed borders on the other – the former will tend to lead to a surplus of labour while the latter will tend to lead to a shortage. In a world without the state where each parcel of land was owned privately, areas with relatively high populations and low concentrations of capital goods would have higher access costs – higher prices to access roads, higher property prices, higher school prices, and so on, deterring immigrants away from an area where there are already too many people. On the other hand, areas with relatively low populations and relatively high concentrations of capital goods would have lower access costs, encouraging immigrants to move to the place where there are not enough people. Thus, through the pricing system, the market sends signals to prospective immigrants telling them which areas need them and which areas do not. In a world managed by states, however, a policy of open borders will mean that the free cost of access to state controlled territory such as roads, schools and hospitals artificially lowers the cost of immigrating, a situation which is, of course, exacerbated when immigrants have either unrestricted or lightly restricted access to welfare benefits. There will therefore be more immigrants and a higher population than the area requires. On the other hand, a policy of totally closed borders artificially raises the cost of immigration to the level of imprisonment or being shot on the frontier. Thus, while for some this cost is justified (as trying to cross the Berlin Wall was, although this border was directed at keeping people in rather than out), the overall result will be fewer immigrants and a lower population than the area requires. States with heavily restrictive immigration policies, such as the United States, can often find that their domestic companies become exasperated by the difficulty in hiring foreign talent while there will be relatively more attempts to cross the border illegally.

This leads us onto another central theme concerning immigration and that is racism and xenophobia. Any treatment of the topic of immigration cannot avoid addressing these issues, particularly given that any opposition, principled or otherwise, to a policy of “open borders” is often shouted down as racist or at least racially motivated. In the first place, libertarian theory has nothing to do with racism. Our conclusion earlier, predicated on the approximation of ownership rights with regards to publicly owned property, that states may, legitimately, restrict foreigners from crossing the border into the territory of the state says only that the state may choose to exercise such a restriction on behalf of its tax-paying citizens. It may equally choose to relax or forego any restriction. Libertarian theory says nothing about the motivations that the state, its politicians and bureaucrats, and the citizens it supposedly represent, may have for making a choice either way. It states only that they may make such a choice. Libertarian theory is emphatically not motivated by anything that could be construed as racist. Moreover, if one does cross over to a value judgment and state that immigration should be restricted in certain circumstances, as the economic concerns that we just outlined suggest is wise, then it is preposterous to assume that the motivation is necessarily racist. These economic concerns would be true in a world populated entirely by whites, entirely by blacks, entirely by Asians or whomever, all speaking the same language and all with a relative cultural homogeneity. Yet the argument – that an increase of labour without an increase in complementary capital goods would lead to diminishing returns – would still be exactly the same.

Rather, what we will attempt to argue here is that racism and bigotry derive from, rather than precede, a state’s policy of fully open borders and that it is such a policy which aggravates racial tension. A libertarian policy of managed borders, with invitations to cross extended to immigrations extended by private individuals and companies would, in fact, result in a relatively peaceful world where different races would co-exist without difficulty.

The key to understanding why this is so is to do with how the economic aspects we outlined above intertwine with cultural homogeneity in a given society. A society is not simply a collection of atomistic persons doing whatever they like whenever they like, even though such a society may exist hypothetically in libertarian theory. Rather, people in a society embrace a certain culture and the particular morals, rules, habits and hierarchies that are created by that culture. The reason for this is not accidental or spurious. Rather, relatively predictable, reliable, homogenous practices across the populace as a whole not only aid but may even be absolutely necessary for effective social co-operation, and it is through social co-operation – the division of labour – that people are able to raise their standard of living for themselves and for their families.  A common language is, of course, an important, if not the most important homogenous, cultural phenomenon required for social co-operation. It is no accident that in very few places in the world there is a complete mixture of different languages and that, for the most part, different languages are separated geographically. Even a country such as Switzerland, which officially speaks French, German, Italian and Romansch has different areas in which each of these languages is dominant, with only a handful of fully bilingual areas. The barriers to social co-operation if the opposite was the case are obvious. Imagine coming to work one day and finding that your boss speaks only Russian, your co-worker Chinese while the team you manage speaks a mixture of Spanish, Welsh and Punjabi. Cultural practices extend also, however, to such apparently menial aspects as the 9am until 5pm working day, or when the main meal of the day is eaten. If people stroll into the office whenever they please or vanish at 10 in the morning to enjoy a three course meal clearly social co-operation is impaired. This is not to imply, of course, that everybody has to do absolutely the same thing all the time in a given society. However, the exceptions prove the rule and different practices – such as working at night and sleeping during the day – are regarded as unusual. Moreover, there is also the fact that humans are a tribal race – we prefer to associate with those who are familiar to us, those who do what we do and those who agree with us, if only for the comfort of predictability, regularity and routine in addition to the contribution of such aspects to social co-operation. Indeed, if the benefits of cultural homogeneity for social co-operation are true then it is possible that our preference for it is an outcome of evolution, which has biased us towards desiring things, through instinct, that ensure are our survival and betterment. However, it would be a mistake to assume that most specific cultural practices emerged randomly or through simple preferences. Rather, they were shaped and formed by the challenges presented by the specific climate, geography, topography and the available resources of the particular locale. For example, the Mediterranean practice of taking a siesta in the middle of the day originated because the temperature was too hot to work at that time. Indian food makes use of a lot of spices because of the difficulties in preserving food in such a hot climate, a difficulty that was not quite so prevalent in regions further from the equator. The practice of circumcision originated out of the challenges posed to male hygiene and comfort in a hot desert environment. The creation of the family unit and sexual fidelity, which we take for granted today, originated at least in part from the need for fathers to bear the costs of raising their children when population levels in hunter gatherer communities began to outstrip resources, something which could not be managed in a culture of “free love”. The family is a cultural practice we see all over the world because the problem it solved was experienced throughout the world, whereas less universal cultural practices sought to solve only specific, local problems.

When immigrants move from one state to another they are usually moving from one culture to another – from one language, one religion, one set of social norms, one type of cuisine, and so on, to something else with varying degrees of difference. If a relatively homogenous culture is both a natural human preference, is a requirement for effective social co-operation, then it follows that cultures of both the immigrants and the indigenous population of a given state are not likely to mix naturally within the same locale and that, rather, one set of cultural practices must yield to the other. This is particularly so when the cultural practices of the immigrants were developed with regards to the challenges posed by their homeland and may be superfluous or completely contradictory to what is required in the state to which they have emigrated. When, as we outlined above, individual immigrants are invited to the state by individual persons and companies to accept an offer of employment it is because there is a pressing, economic need for their presence – there is a surplus of capital goods and equipment and a shortage of labour. The immigrants, in this instance, will begin work immediately and will mould themselves into the cultural practices and habits of the indigenous population. Furthermore, their skills and abilities, being in genuine short supply, will be recognised and appreciated by their co-workers, with whom they will be co-operating to create more wealth and a greater standard of living, rather than competing to consume an existing stock of wealth. It is true, of course, that immigrants may retain cultural practices of their homeland in the domestic situation of their own home; however, the first generation of children, born in the state to where their parents have emigrated, will become heavily surrounded by its culture. To them, this new state is their homeland and not a foreign place and they will know little to nothing of their parents’ place of origin. Thus they become even more integrated into the culture of the new state and will most likely consider themselves as citizens of the new state even if they retain an obeisance to the state from which their parents emigrated. This is not to imply, of course, that the culture of the immigrants will be completely eradicated. Indeed, in some cases, foreign cultural practices find their way into the indigenous culture. The delights of foreign cuisine, for example, are often embraced by a domestic population, as Indian and Chinese food has throughout the West. All we are saying is that at if social co-operation is to be pursued to its fullest extent, one of the cultures must become recessive and to the extent that the immigrant population form a minority it is likely to be the indigenous culture that remains dominant. The outcome, of course, is a prosperous society where immigrants and natives work together peacefully without racial tension or xenophobia.

Contrast this situation, however, with the case of where it is the government of the state which welcomes immigrants to its territory, either through a policy of open borders or according to some artificial quota system which is wholly unrelated to the genuine demand for additional labour within the state. Here, the immigrants will arrive without offers of employment but they will quickly look for them. However, because there is no demand for additional labour at the existing wage rates the effect of the arrival of the immigrants is to push existing wage rates down for the indigenous population. Thus the latter draws the perception that immigrants are simply creating a crowd, a crowd which competes for existing resources but seemingly does little to add productive value. This becomes exacerbated by minimum wage laws and other costly employment regulations that the state heaps upon employers – if wage rates drop below these levels then unemployment must result. Hence the perception that foreigners are coming over to “steal” jobs from the indigenous population, although both will be afflicted. Moreover, if the immigrants cannot find jobs then it is less likely that they will be integrated into the working practices and the cultural environment of their new state. What results, therefore, is that they form their own communities and their own local economies which, with little impetus to do otherwise, retains the cultural distinction of their homeland. Hence, the perception amongst the indigenous population, that entire towns and communities are being “invaded” by an alien culture and that one’s own homeland is being turned into an outpost of some far and distant country. The stage is set, therefore, for an increase in racial tension and xenophobia, an increase which will be exacerbated if the government follows a deliberate policy of multiculturalism – i.e. the explicit intention to create numerous cultures within the same society where one was previously dominant by inviting immigrants. Multiculturalism has rarely existed under purely voluntary conditions. The only exception is where vast swathes of immigrants from different places move to a previously uninhabited or sparsely habited area. The difference here, however, is that everyone, from wherever they have come, has moved to the new land in order to make a better life for themselves and they are attempting to do so in a place where there are few, if any, indigenous persons of a given culture seeking to preserve an existing culture. Everyone, in other words, is embracing change and the challenges that come with improving their lives, rather than attempting to defend one that already exists. Such was the early history of the United States which, of course, was populated by immigrants from all over the world.

What we can see, therefore, is that policies of open borders and forced integration are the cause of racism and xenophobia through economic and cultural clashes. They are not the solutions to these problems. However, even if there were no economic barriers to welcoming immigrants to a given state and even if the only motivation for indigenous people to exclude them was racism and xenophobia that sprung from their own minds entirely as a matter of preference, our priority is to ensure that all of the six billion people of different creeds, colours, races, and religions are able to co-exist peacefully on this small rock hurtling through space. If different peoples and cultures living in separate geographical locations achieves this whereas mixing them all together in a single place causes them to fight then it is reasonable suggest that preference should be given to the former.

Progressives often label their policy of mixing cultures in the same locale as a policy of achieving “diversity”. Yet the world as a whole already is a diverse place. Some places are hot, some places are cold, some are wet, some are dry, some have fertile soil while some are barren. As we said earlier, this diversity of geography, climate and topography, together with the unique challenges posed by each difference with which humans have to deal, is what creates diverse cultures. The forced creating of “diversity” in every single locale simply amounts to a travesty. Not only does mixing every culture everywhere in every location, in fact, create bland uniformity as opposed to diversity, it is the equivalent of trying to put a mountain, a hot desert, and a jungle all in New York City. To that extent we might say that attempting to create “diversity” is a utopian revolt against nature.

Conclusion

To summarise what we have concluded here:

  • In a world where the existence of states is assumed, the ownership of state property should be approximated to the ownership of the state’s tax paying citizens, thus ruling out a right, in libertarian theory, for non-taxpaying foreigners to cross the border;
  • That invitations to cross the border should be made to prospective immigrants by private companies and individuals;
  • Such a policy would prevent the relative surplus or shortage of labour experienced when the state actively manages immigration policy; labour and capital goods would be channelled, through pricing, profit and loss to where they are most needed;
  • That it is relative surpluses of labour through policies of open borders, forced integration and the pursuit of multiculturalism, which are the causes, and not the solutions to, racism and xenophobia. The prevention of surpluses of labour through the method we described would also prevent such racial and cultural clashes and is more likely to create a world of peace and prosperity for all persons, regardless of colour or creed.

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Voluntary Slavery

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The topic of voluntary slavery – that is, the question of whether an individual who is presently a self-owner may voluntarily subject himself to slavery irrevocably – is understandably controversial yet, properly understood, not an overwhelmingly difficult one to comprehend. This essay will attempt to clarify some of the problems and issues surrounding voluntary slavery, together with a discussion of elements that have not been thus far examined in much detail. Although we will not reach anything other than a modest conclusion here, we will attempt to put ourselves in a better position of understanding the main problems.

The first question that must be resolved is precisely what is meant by slavery. Here we must recall the fundamentals of wider political theory and how libertarianism answers the questions that it raises. The ultimate reason why ethics exist is to resolve conflicts over physical matter. Different people desire to devote physical objects to different ends. Hence, property rights are vested in individuals over physical objects in order to determine precisely who, on the one hand, may use that object to fulfil his ends and who, on the other hand, must yield and seek other physical objects for the fulfilment of his ends. The issue of slavery therefore concerns the property rights over the body of an individual person and whether someone may, from a purely legal point of view, voluntarily transfer ownership of the physical matter that constitutes their bodies to another person. In other words, our question here is whether, in accordance with libertarian theory, one’s own body can permissibly constitute physical matter the ownership of which can be transferred to another individual. Or, to put it a further way, whether someone else’s body could, through voluntary arrangement, come to constitute your outright property and be treated however you like. Importantly, though, ownership rights are not the only type of rights that we might consider. A right may simply constitute the legal ability to perform a specific physical act in relation to a specific piece of property, not to dispose of that property in any way the rights holder may deem fit. Easements and leases, for example, confer upon their holder the right to enforce merely a single action, such as the right to walk across a field between the hours of 9am and 5pm. Any other physical actions towards the property in question are not permitted. Therefore these more diluted rights, short of full ownership, must also be considered in relation to the matter that constitutes a living human’s body. This is important because in certain situations people do contract to grant other people the right to come into physical contact with them in ways that are far less than full ownership and this is not believed to be controversial – most notably professional contact sportsmen who have contracted to play on a certain number of occasions. The question of whether preventing the transfer of the full ownership of one’s body i.e. voluntary slavery – would, in turn, prevent the granting of these “lesser” rights over the same is not something that has received sufficient analysis.

It is important also to distinguish the granting of rights from the granting of mere consent. People come into voluntary physical contact with each other’s bodies in a variety of scenarios – sexual intercourse probably being the most frequent. However, such contact is not permitted on the basis of a granting of a right to the other individual. Your partner, for instance, does not have the “right” to have sex with you. Rather the fact of consent in these situations demonstrates that there is an absence of conflict regarding the physical matter in question (i.e. your body); that both parties are in agreement as to how that matter should be directed at that particular point in time. Thus, if a person is accused of raping a woman, his defence will not attempt to argue that he had a “right” to have sex with the woman but, rather, that the fact of consent established a situation of no conflict. If that consent is withdrawn, however, a conflict exists and the physical contact becomes invasive and unlawful.

Before beginning our examination of voluntary slavery we must expunge from our thought all of the connotations and consequences associated with involuntary slavery with which we are acquainted from our historical experience of the practice. Forced subservience, second class citizenry, racism, slave labour camps and extermination in World War II, appalling living conditions and brutal, inhumane punishments are all issues that fall into this camp, some of which are believed to have consequences today. For example, the lower socio-economic position held by black Americans compared to whites is believed, rightly or wrongly, to be a legacy of black slavery. Libertarianism is emphatically and uncompromisingly opposed to any arrangement of involuntary slavery where an individual effectively imprisons another person aggressively and any dealing of other human beings as property in this regard is absolutely and unrelentingly opposed by libertarianism. A discussion of purely voluntary slavery – which would be a peaceful and mutually agreeable arrangement clearly devoid of all of the effects we just listed – cannot commence with the die loaded against its possibility as a result of us confusing it with the wholly different and abominable practice of involuntary slavery. Indeed, it may be ideal for this purpose to denote some term other than “slavery” for voluntary arrangements, reserving “slavery” purely for forced and aggressive relations. However, as a neologism is not yet forthcoming we will continue to talk of “voluntary slavery”. Moreover, and for the avoidance of all possible doubt, nothing concerning whether or not a person may voluntarily subject himself to slavery has any bearing on his prior right to self-ownership, which is firmly and uncompromisingly established in libertarian theory.

Furthermore, we must also suspend from our thought anything to do with the cultural acceptability and the tastefulness of (or the motivations that people may have towards entering) an arrangement of voluntary slavery. In spite of the protestations of the handful of dyed-in-the-wool Marxists that the majority of labourers languish in a state of so-called “wage slavery”, it is clear that no one today properly views other human beings as in any way, shape, or form as “belonging” to anyone else as either a matter of culture or as a matter of strict legality. We do not regard employees as belonging to their employers, nor do we think of a wife as being owned by her husband; rather, in spite of conversational colloquialisms such as “my employees” or “my wife”, these are viewed as mutually agreeable partnerships between humans with equal individuality and dignity. The only exception is children who, on account of their immaturity, are said to “belong” to their parents but this relationship is viewed as one of care and nurturing founded upon love and trust and is a far cry from any sense of ownership in the manner one would own an inanimate object. Any relationship between owner and owned founded on voluntary principles would therefore appear to be initiated by some kind of unusual, fringe motivation, perhaps sexual or sadomasochistic, or simply unconscionably “exploitative” such as in the case where a person demands the slavery of another in return for something the latter desperately needs. These issues are not relevant to our main concern here which is the strict legality of an arrangement of voluntary slavery – that is, regardless of the motivations towards such an arrangement, if a person agrees voluntarily can he become a slave? Libertarians uphold the legality of hundreds of other voluntary practices, taking effect through either mutual consent or contract, which may not happen to have the blessing of mainstream, cultural approval. Drug taking, adultery, prostitution, parsimony, selfishness, or even gambling are all, at least in certain settings, socially unacceptable. Libertarians would uphold the legality of an individual choosing to do these things but he may also, privately, believe that such choices would be unwise or even bad choices and would equally uphold the legal right of other people to disassociate from these practices. Similarly, therefore, with regards to voluntary slavery, the question of whether two people should be legally permitted to enter such a relationship is separate from the question of whether it would be a good idea, founded upon good motivations, for them to do so and we must hold firm this distinction in our mind.

At this juncture of our analysis, we will proceed to dispose of two arguments that are frequently asserted in the debate concerning voluntary slavery – one in favour of arrangements of voluntary slavery and one opposed to them. Indeed, these two arguments practically dominate the issue yet they are, in the view of the present author, not really the issues that cause the topic to be problematic. The argument in favour is the straightforward one that if you own your body then you should be able to do what you like with it. Therefore, if you cannot sell that ownership to another person in order to become a voluntary slave then you do not really own your body at all. Thus, so this argument goes, outlawing voluntary slavery is an attack on the concept of ownership. Stated in this naïve, literal sense, the argument misunderstands this crucial concept. Ownership of an object simply means that you have the right to exclude other people from their physical presence over that object in order for you to be able to fulfil certain ends you may desire from that object to the detriment of ends that other people may desire from it. If I own a cup it means that other people may not invade the physical integrity of that cup without my permission whereas I, on the other hand, may do so without anyone’s permission. Thus, ownership is a sociological concept and concerns the sphere of permissible activity towards physical objects vis-à-vis other people. Once exclusion of all other persons has been achieved it does not mean that I can “do whatever I want” with the cup. I cannot turn it into a car or make it vanish to the other side of the world (although, of course, no one has the right to physically restrain me from attempting to accomplish these things with my own property and we can surmise that, one day, the technology may exist to do so). Nor, to a greater degree of impossibility, can I make it a cup and a plate at the same time, or paint it red all over and blue all over simultaneously. The argument that dismissing the possibility of voluntary slavery dilutes the concept of ownership is clearly rendered false by these examples. The fact that I cannot do any of these things with the cup does not in any way afflict my right to exclude all other people from the physical integrity of that cup. If subjecting oneself to voluntary slavery also founders upon a similar impossibility in nature (which, as we shall see, is the chief argument of those who oppose voluntary slavery) then this impossibility in no way diminishes the concept of ownership. On the other hand, if there is no impossibility in transferring ownership over your body to another person, this fact is not predicated upon the concept of ownership necessitating one’s ability to do whatever one likes with one’s property. Rather, it simply means that the there is no barrier to making the right to physically exclude all others from the physical borders of your body transferrable to another individual. The correct way of approaching the issue is to ask whether any attempt to forcibly prevent any arrangement of voluntary slavery would itself be an unjustified interference with your right to exclude all others from your physical property. Only in this sense can the argument that one should be able to do whatever one wants with that which one owns carry any merit.

The next argument that we will consider, which opposes voluntary slavery, is the doctrine of inalienability. In order for a physical object to be the subject matter of a contract, so this argument goes, it must be alienable, i.e. separate and divisible from that person, and not constitute an integral part of that person himself. The primary fixation in the mind of these authors is the nexus between the body and the mind, or, more accurately, one’s will – that to bind the body by transferring ownership over it is to also bind one’s will, something which supposedly cannot be done. It might be useful, in understanding this argument, to quote its main proponent, Murray N Rothbard:

The only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so. Or, as Williamson Evers points out,

“the philosophical defenses of human rights are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.”

Hence, the unenforceability, in libertarian theory, of voluntary slave contracts. Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention – and one that is fortunately upheld under present law – is that Smith’s promise was not a valid (ie., not an enforceable) contract. There is no transfer of title in Smith’s agreement, because Smith’s control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. Smith’s agreement was a mere promise, which it might be held he is morally obligated to keep, but which should not be legally obligatory.1

Walter Block has provided an extensive rebuttal against the doctrine of inalienability as understood by Rothbard and several other scholars which we need not repeat verbatim here2. Rather we will shall choose a few salient points and add some observations of our own.

In the first place, we must dispose of the argument that property rights have anything to do, as both Rothbard and Evers argue, with the self-ownership of the will. The question of ownership arises as a result of conflicts over physical matter, not intangible concepts such as the will. Indeed, when we begin to talk of the idea that to transfer ownership of a person’s body is synonymous with repudiating any ability to change one’s mind and thus unconscionably binding one’s “will” we see that we run into all sorts of problems, namely that it proves far too much. For all contracts, which transfer title of property from one person to another, do, in fact, bind a person’s will and restrict the choices he can make in the future. If I transfer a car to another person my will is then irrevocably bound from enjoying the services of that car ever again. I have voluntarily excluded from myself the choice to use that car to serve my ends as opposed to someone else’s. I cannot later change my mind and take the car back again. To apply Rothbard’s argument consistently would require one to invalidate all transfers of title to property. Indeed, the fact of scarcity itself results in a world where one’s will is repeatedly and irrevocably bound by choices that have to be made every minute of every day. We make these choices because we believe that the resulting situation is an improvement for us compared to that which we have discarded. Once I have eaten the proverbial cake my will is bound by that fact and my subsequent desire to have the cake instead is fruitless. This is no less true when those choices involve interpersonal exchange rather than autistic exchange. If I make a decision to trade away some of my possessions my will is eternally bound by a restriction from ever using those possessions again. But the reason why I choose to do so is because I gain something from the exchange that is more valuable – that my will has been restricted in one way yet released in another, more satisfying way.

The transfer of ownership of one’s body may, of course, engender a restriction over one’s will greater than that of transferring ownership of an external object such as a cup. Indeed, the core of Rothbard’s problem seems to be that transferring one’s body absolutely, irrevocably and in all cases subordinates one’s will to someone else’s. However, such a restriction must, in the mind of the individual, be worth the resulting gain. Rothbard the economist was emphatic that valuations are subjective so it is not for him to determine whether a person should value ownership of his body higher than some other end. Moreover, it is not always clear that contracts which transfer rights over one’s body would necessarily bind one’s will in a manner that is more restrictive than contracts that transfer external objects. As we noted earlier, not all rights are outright ownership rights. We can imagine types of transfers of rights over one’s body short of full ownership similar to easements and leases – such as the right to keep a person in a specific location. The only right conferred on the other party is to prevent this person from leaving this location, whereas the latter person still retains the ability to do whatever his “will” desires within that location. A could agree with B to remain on a twenty acre estate with a ten bedroom mansion, a personal chef, a swimming pool, a tennis courts, fields, woods and so on. This contract would be invalid in Rothbard’s view and the individual should be able to change his mind and leave. Yet a contract to transfer one’s entire annual salary to another person for the rest of one’s life would, according to Rothbard, be valid and enforceable. Yet it is clear that the latter binds one’s will in far more ways than the former. Moreover, what are we to make of transfers of full ownership of parts of the body as opposed to the whole? Surely I could sell my leg or my arm or, more realistically, a kidney for organ transplant without binding my “will”? Precisely how much of my body do I have to transfer ownership of to another person before my “will” becomes bound? Once detached, of course, it is possible to consider a particular body part “alienated” and thus saleable; but it is difficult to understand how, under the inalienability doctrine, precisely how one could conclude contracts regarding a particular body part prior to such detachment. So if Rothbard’s argument can be extended to the conclusion that a person cannot transfer any part of his body whatsoever to another person it would mean that surgeons, in spite of the full contractual consent of the patient, would be prevented, by law, from removing a malignant tumour in order to save that patient’s life.

In a rare moment of confusion for this author, Rothbard mixes the factual with the normative in order to lend his argument plausibility (Randy Barnett makes a similar argument3). In the quotation above Rothbard says “Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, ‘stuck’ with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will.” In other words because, in nature, the de facto control of a person’s body rests with his mind then so too should the normative power of disposal over that body, i.e. ownership. Now it is absolutely true that in nature a man’s mind and will is always wedded to his own body and this connection would survive any attempted sale of one’s own body to another individual. No legal document can ever confer on me the power, with my will alone, to make another person blink, cough, or move his arm. That individual would still retain the same de facto control over his mind and body just as he was before he sold himself into slavery, and he would still retain his thoughts, feelings, and desires. But these facts have no bearing on the question of ownership, which is who may legitimately determine the ultimate disposal of the matter that constitutes a person’s body. The issue we are interested in is, regardless of whatever the slave’s will desires and the de facto control over his body, can somebody else, through a voluntary arrangement, legitimately intervene with the physical integrity of that body? This de facto control of the voluntary slave to control his own body may have a bearing on how much use and enjoyment an owner could get out of his voluntary slave and, indeed, whether the prospect of ownership is attractive in the first place. A voluntary slave may choose to misbehave, disobey his owner or just be generally lazy and workshy. Other voluntary slaves, though, may be perfectly obedient and accomplish everything their new owner wants. However, this is true of animals too which also retain a de facto control over their muscle movements. Some animals are obedient and need little encouragement to make them do what an owner wants them to do; others are stubborn and need cajoling or physically disciplining. Yet this fact has no bearing on the fact that humans own animals.

In any case, however, it is not immediately clear how any person is “stuck” with his de facto control over his own body. He could, as Block points out, commit suicide and thus permanently and irrevocably sever his will from the physical matter that constitutes his body. Clearly a person does have an option in nature to discontinue his control over his body.

Having disposed of these two powerful arguments – one for and one against voluntary slavery – which have, as was suggested earlier, dominated the topic of voluntary slavery, let us proceed now to discuss what may be a more problematic issue when it comes to voluntary slavery. This issue it that of enforcement of voluntary slavery arrangements – that is, if a voluntary slave runs away, what could or should be done about it? Before we address this, however, let us first discuss, as a brief tangent, how proliferate voluntary slave contracts are likely to be in a libertarian society – are arrangements of voluntary slavery likely to be fringe and marginal or would their legal permission open a Pandora’s Box that would suddenly lead to all manner of “exploitation” of the weak by the strong? The most likely scenario where this would be possible is, clearly, with labour contracts, i.e. contracts of employment. If we allowed voluntary slavery, so a retort would go, wouldn’t that lead to employers demanding arrangements of slavery from their employees? “Hungry? Be my slave!” “Need a home? Be my slave!” “Need money for your children? Be my slave!” And so on. However, such an argument could only be premised upon the Marxist view that the fate of the worker is to sink ever lower and lower and is utterly dependent upon what the capitalists offer him – a view that we know to be false from nearly 200 years of economic progress that the standard of living of even the lowest earning worker has risen significantly. Employers are compelled, through competitive bidding, to offer a real wage rate that is markedly higher than one that provides subsistence. We can surmise that people do not enter contracts of voluntary slavery (or the closely related arrangement of indentured servitude) today not because of legality but because, for the employee, even the lowest free wage is able to offer a position that is far more attractive than an arrangement of voluntary slavery. Indeed, one of the overwhelming reasons why compulsory slavery was gradually abolished was because for the employer or would-be slave owner it was less expensive and more productive to hire free labour than to trade in slaves – and that it is better to risk having an employee quit and to hire another rather than try to “own” the original employee. It is therefore likely that slavery, voluntary or otherwise, would only return in any significant measure if society itself was to revert to primitive economic conditions of low capital accumulation and low productivity per person.

Before leaving this topic we might as well consider the relationship between the trading of one’s body, i.e. voluntary slavery, and contracts of employment. Rothbard offers the following explanation:

A person’s labor service is alienable, but his will is not. It is most fortunate, moreover, for mankind that this is so; for this alienability means (1) that a teacher or physician or whatever can sell his labor services for money; and (2) that workers can sell their labor services in transforming goods to capitalists for money. If this could not be done, the structure of capital required for civilization could not be developed, and no one’s vital labor services could be purchased by his fellow men. The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced – for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement.4

This explanation is erroneous. The reason why contracts of employment are valid is nothing to do with the “alienability” of the labour service. A service is an intangible thing and cannot be disconnected or alienated from anything as it is not already in the form of any kind of connection or embodiment. Rather, the validity of the contract of employment rests on the fact that the individual employed has agreed to a conditional receipt of money, the condition being that he carry out certain tasks as stipulated by his employer. If those tasks are not completed then title to the money does not pass from the employer to the employee. If they are completed, on the other hand, then title to the money does pass and the employee can enforce this title as a result of having fulfilled the condition. This explanation is in accordance with (and, indeed, is identical to) the title-transfer theory of contract that Rothbard espouses also in The Ethics of Liberty. Contracts of voluntary slavery, however concern the transfer of the title to the person’s physical body. This too may also be made for money. A may agree with B to transfer a sum of money to B’s family if B transfers title of his (B’s) body to A. Moreover, such a transfer may result in the value of B’s ability as a labourer being capitalised, so that B could, if he wished, sell A for that capital value to another person. But a contract of employment and a contract of voluntary slavery, while they have obvious similarities, concern the transfer of different physical entities and are not distinguished by any “alienable” labour service on the one hand nor an “inalienable” will on the other.

Let us therefore proceed now to discuss the issue of the enforcement of voluntary slave contracts or agreements and why it is this topic which is actually the difficult one when comprehending voluntary slavery arrangements. Dealing first of all with the enactment of transfers of ownership over the physical matter that constitutes one’s body, it is not necessary for the voluntary slave to be in receipt of a sum of money from the potential owner – i.e. he does not literally need to sell himself. He could quite easily make a gift of himself to someone else and this is, as we have examined elsewhere, perfectly in accordance with libertarian contract law. However, we can surmise that in many, if not most, cases a sum of money will be transferred in order for the owner to purchase the voluntary slave from himself. One objection concerning this is scenario is the fact that if the sum of money is transferred to the voluntary slave and the contract is therefore concluded, because that sum of money belongs to the voluntary slave and the voluntary slave belongs to the owner then surely the money too belongs to the owner again. Can’t the latter simply take back what he gave? This is certainly possible but it would, as Block points out, simply point to the stupidity of the voluntary slave and not necessarily to any impossibility of concluding the contract in the first place. However, the more likely scenario is that the contract will require the funds to be paid to a third party – most likely the family of the voluntary slave. In this instance the funds would be irretrievable by the owner once the contract is concluded. But even if it the funds were paid to the voluntary slave himself the contract could easily stipulate that the voluntary slave retains title over the funds and that the owner must grant him time to enjoy spending them. Contracts for voluntary slavery-type arrangements need not be an all or nothing thing and the voluntary slave is quite entitled to reserve specific rights to himself that would preclude the transfer of full, outright ownership over his body to another person. Whatever the specific content of a voluntary slavery contract, however, we can surmise with little doubt that courts will require a standard of proof of transfer greater than that required for transfers of ownership of dead objects – such as written documents and witnesses etc. – rather than simple oral declarations and exchanges. Courts are likely to want to be as sure as possible of the intentions of the parties before enforcing such an arrangement.

Second, assuming that a voluntary slavery contract is valid, the problem surrounding any “enforcement” of this contract rests on the fact that the whole concept of contractual rights requires there to be two continually recognised legal parties to the contract. However, when the voluntary slave transfers outright and irrevocable title over his body (and with it all rights and possessions that he owns) to another person, he ceases to be a legal person in any sense of the concept at all. The voluntary slave is now akin to being simply a piece of property akin to an object like a plank of wood. Rights, however, are not enforced against pieces of property but against other legal persons. What the owner of the voluntary slave now possesses is the right to exclude all other legal persons from the body of the slave that now constitutes his property and to seek legal sanction where third parties interfere with this property. In other words, his right is enforceable against other people and not against the voluntary slave who is now not a legal person. Thus, the right of ownership which the owner receives is not, in fact, any kind of right enforceable against the voluntary slave at all.

If, therefore, the voluntary slave runs away from the owner what would be the response of the law? The answer is simply nothing at all. The owner has no legal right of enforcement against the slave at all for the slave is not a legal person and legal enforcement exists only between legal persons. As the voluntary slave is not a legal person and is simply a piece of property he can commit no crime nor any breach of contract by running away. His running away is, rather, simply an extra-legal event akin to losing one’s car keys or having a pet run away. Such a situation may be very unfortunate for you but you would not, in these circumstances, go to court to enforce judgment against the runaway keys or the absconding pet in order for them to be returned to you. Rather you simply have to try and find them yourself. The situation is no business of any court unless and until there is any interference in your property by a third party who is a legal person and it is against this person against whom your title to the property concerned is enforceable.

Does this fact present any obstacle for voluntary slave contracts? Unless one accepts the doctrine of inalienability then clearly it does not. The situation is no different from that where a person is deceased. If you are, say, a family member who comes to own the body of a deceased relative your right over that body is not enforceable against the deceased individual; the right you possess is to exclude anyone else from that body. The only difference is that, with voluntary slavery, a person has extinguished his legal personage while remaining alive after.

It is submitted, however, that the far more likely scenario with voluntary slavery contracts is that the voluntary slave will continue to be recognised as a legal person with a specific legal identity and, most likely, will reserve specific rights should the contract be broken. This is because, in the event of an absconding by the voluntary slave the owner would retain the advantage of being able to resort to legal sanction and, moreover, in the event that transfer of ownership of his body is conditional the voluntary slave can break the contract when the owner fails to fulfil that condition. Let us therefore proceed to examine the enforcement of voluntary slavery contracts as any other contract would be enforced between continuingly recognised legal persons.

Practically all discussions of voluntary slavery make at least the tacit assumption that should a voluntary slave decide to escape from his now owner then the appropriate remedy should be that the voluntary slave is forcibly returned to the owner – so in the lexicon of contract law, the appropriate remedy is specific performance. This is undoubtedly a hangover from considerations of what used to occur with involuntary slavery. The slaves did not wish to be there in the first place; if they ran away their forced return did not alter the situation – they were still unwilling workers and we can surmise that whatever the owner was getting out of them after their return would have been the equivalent of what he was getting out of them before they escaped. However, our topic here is voluntary slave contracts and we can surmise that the voluntary nature of the contract itself does have a bearing upon the benefits of the contract to the voluntary slave owner. We see that in contract law generally, which concerns only voluntary relations, specific performance is often considered to be the least viable remedy, particularly in contracts that involve a personal working relationship such as those between employer and employee or a contract to provide services. This is precisely because the benefits to be gained from services performed under a contract depend, in a large measure, upon the relationship between the contracting parties and their continued willingness to serve each other. To compel specific performance in instances where this relationship has soured or where this willingness has otherwise been lost usually makes a bad situation worse. But even where this is not the case and the contract concerns delivery of physical property rather than a service specific performance is not always available. If the defendant is unable to deliver a specific piece of property it may be because it has been lost or destroyed. But it also may simply be that an alternative form of recovery is easier (i.e. cheaper) than trying to extract the particular piece of property that was the subject matter of the contract. At all times the plaintiff will normally seek, and the court will be prepared to enforce, the option that most ably restores to the plaintiff that which he owns for the lowest possible cost. Very often this will amount to the payment to the plaintiff of a sum of money equivalent in value to the property that cannot be rendered (and in the case of services to permit the plaintiff to seek those services elsewhere from a more willing party). In other words, just because you have contracted to receive something does not mean that the court will grant you receipt of that specific good or service and, moreover, nor are you actually likely to be interested in receiving it if the attempt to do is onerous. We can surmise in the vast majority of cases that the benefit to be gained by a voluntary slave owner from specific performance of a voluntary slave contract where the slave is no longer willing is likely to be greatly diminished compared to the situation where the slave remains willing.

So what is likely to happen, then, in cases where a voluntary slave runs away from his owner and wishes to break the contract? Let us recall that what the slave has done is to abscond with the owner’s property, which in this case is the physical matter that constitutes his own body. He has, in effect, stolen from the owner although we may like to note that outright theft may not appear in all circumstances and, like contracting parties, negotiations to dissolve the contract peacefully may be more frequent. The precise remedy available to the plaintiff may depend upon the precise nature of the contract. The contract itself may, of course, specify remedial title transfers in the event of a breach. Assuming it does not, however, if the contract concerned required the owner to transfer a sum of money in exchange for receiving title to the voluntary slave’s body, the most likely remedy is to compel the runaway slave to pay that sum back to the owner, restoring the latter to his original, pre-contractual position. Where, however, there was no initial payment of money then payment of some other equivalent to the capitalised value of the service that the voluntary slave would have rendered to the owner may be ordered by the court. This may, of course, result in de facto continuing slavery if the voluntary slave is required to turn over the best part of his annual salary while working as a free individual in another occupation. But we must recall here the equivalent situation where gifts of ordinary property are made by one person to another. If A makes a gift to B, A cannot then change his mind and demand the gift back. If he takes it he is required to either return it or pay B a sum of money equivalent to its value. The decision to make the gift, contra Rothbard, binds for all of time A’s will vis-à-vis the title of that property. A does not have a right to change his mind and repudiate his decision without facing consequences. Likewise, therefore, where the property concerned is A’s own body so too will there be consequences if, having gifted that property to B, A attempts to take it back for himself. This may indicate that making a gift of one’s own body is, perhaps, gravely foolish or, at best, necessitates a thorough degree of consideration. But in terms of strict legality there is no reason to suspend the consequences that flow from A repudiating his own, freely made decision – a repudiation that would involve simply shifting a loss from himself to B.

A further element of enforcement of voluntary slave contracts is, of course, whether the voluntary slave could enforce the contract in the event that it is the owner who is the breaching party. Let us say, for example, that A agrees with B that B will pay A’s family a sum of money each month in return for A transferring ownership over his body to B. If B ceases to make these payments then A can either enforce the contract or seek to have it rescinded.

Conclusion

What we can see from all of this, therefore, is that while in terms of strict legality there appears to be no bar in libertarianism towards entering arrangements of voluntary slavery, any institution of voluntary slavery is likely to be markedly different from the institution of involuntary slavery and is fraught with many more issues and complications. Hopefully this essay has outlined and explored some of the main topics for further consideration in voluntary slavery, while revealing something of its nature and the sorts of arrangements that may be entered into (if at all) in a free society.

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1Murray N Rothbard, The Ethics of Liberty, 134-6 (footnotes omitted).

2Walter Block, Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon and Epstein, JLS Volume 17, no.2, 29-85.

3Randy E Barnett, Contract Remedies and Inalienable Rights, Social Philosophy & Policy 4, no. 1, pp. 188-90.

4Rothbard, pp. 40-41.

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 true, a simpler explanation is that as the statement or promise has not transferred the actual good under consideration, there must, in a libertarian legal system, be some other property that is transferred. 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 the intention of 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 not 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.

 

Politicians and Entrepreneurs

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When perusing much public discourse concerning those in government and those who, say, are businessmen and entrepreneurs, one of the more striking aspects is how their economic roles and motivations are viewed as the complete opposite for what they really are.

Even though their achievements may, from time to time, be lauded, the businessman, entrepreneur or capitalist is almost universally despised for what appear to be his motives of greed, selfishness and exploitation. Central to this is the profit-motive, a factor that seems to receive exclusive attention at the expense of any other. Yes, it is true that people are in business to make money and usually as much of it as possible. But this completely overlooks the fact that no businessman is in a position to force anyone to contribute to his income. He can only gain a return on his investment if he is able to accurately devote the scarce resources available to the most highly valued ends of consumers. Even if he has no charitable motivation or any emotive feeling towards the people whom he serves, at the very least he is required to have a superior empathetic understanding of their tastes and desires. If he fails in this regard then the result is not a bumper profit but an eye-watering loss. All transactions, therefore, between businesses, their customers and their employees are entirely voluntary. People enter voluntary transactions because they expect to be better off as a result of them. Nobody is therefore put into a worse position through his interaction with a business, or at least they expect not be.

Counter this with the view of the politician. Reading the list of supposed motivations for government office one would think that only those with an angelic disposition need apply. Not only are they expected to be selfless and altruistic, thinking only of their “people” and of their “nation”, they are also supposed to be utterly devoid of any kind of personal ambition. Asked whether he/she has any eye for high office, one is normally retorted with the rhetoric of “public service” and the apparent fact that the budding statesman is just there to “do his job”.  In short, the implication is that government employment produces universally good and wonderful things that apparently require some kind of sacrifice for which there is very little reward. Nothing could be further from the truth. Government receives its revenue from taxation, and taxes are paid compulsorily. Whereas the entrepreneur has to risk the entirety of his wealth in order to persuade his consumers that what he produces is worthwhile spending their money on, a politician faces no such restraint. They can charge as much as they like, deliver services that are despicably dire and command a personal income that far exceeds what they would be able to obtain in the free market. Furthermore, because the funds for all of their boondoggles have been levied by the threat of force, there is a very real loss experienced by the taxpayers, even if the resulting service is relatively “good”. For none of them would need to be forced to pay up if the government’s ends where truly what they most highly desired to do with their money. Whereas an entrepreneur makes everyone – himself and his customers – better off, the politician only makes himself and the recipients of his tax loot better off. Those who have been forced to pay are left substantially worse off.

These fallacious views have played themselves out recently in the whole debacle of corporate tax avoidance. Few overlook the fact that the likes of Amazon and Starbucks rake in large revenues (if not apparent accounting profits) that somehow requires them to “give something back” to “society”. Yet what is forgotten is that they have only been able to obtain these revenues and profits through voluntary exchange because they have created employment and served the needs of customers by providing them with products that they want to buy. Yet for some reason we think it is just to charge them for this “privilege” of serving our needs. Further, is there not something incongruous about the whole rhetoric of “giving back”? I want a coffee so I go to Starbucks; I give them money, they give me coffee; they have already given in the form of a product that meets my needs. If Starbucks has to “give back” then why don’t I have to “give back” their coffee? Why am I, through the route of taxation, effectively allowed to renege on my side of the bargain?

A similarly related fallacy is that anyone who “owns resources” (i.e. land and capital goods) effectively just has to sit back and earn a perpetual income by virtue of this ownership. Although space precludes a detailed examination of the economics, a net return can only be earned from such ownership if the good is directed to a use more highly valued than that anticipated by other entrepreneurs. Failure to do this will simply result in losses. Try telling the owners of Woolworths, HMV or Blockbuster that ownership of resources is a path to perpetual wealth and income. If anything, it is the government that yields a perpetual income from resources. For it can confiscate anything it wants by force, and display zero entrepreneurial talent with its use by spending it on any wasteful project it deems desirable to itself and its cronies. The only say we have in the matter is an “election” between approved and screened candidates once every four to five years.

Whenever one is presented, therefore, with an opinion on the characters of businessmen on the one hand and of politicians on the other it is best to assume that the stated characteristics should be reversed.

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What is Liberty?

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While proponents of liberty are often to be found waxing lyrical about its virtues, it is worthwhile taking a step back and discussing what liberty actually means –  that is, rather than attempt to explain why it is just, how do we define it in such a way as to distinguish it from other political philosophies?

First, let us discuss what liberty is emphatically not. It does not mean that one should be able to live a life free of any of the obstacles that humans are burdened with by nature. So for example, “freedom” from hunger, from poverty, from sickness, from the cold, the rain, and so on are all freedoms that humans can achieve only through their power over nature and through the utilisation of nature’s resources in order to provide relief from want. They are problems that would confront any human even if he was the only being in existence and to say that we “need” these freedoms is to state the obvious truism that we do not live in the Garden of Eden. Rather, liberty is a sociological concept – it refers to the relationship that arises between humans in the same world, not between humans and nature. This equivocation is frequently taken advantage of by those whose political orientations are far from libertarian. Not only, for example, is taxation and redistribution justified to provide “freedom” from the very things that we just listed but so too do our political lords and masters abuse the term when discussing the rights that they are kind enough to grant us. The so-called “right to life”, for example, can mean anything from not being killed by another human to the provision of food and shelter to sustain it. A vaguely defined right to “privacy”, i.e. to be left alone by everyone else, has to be “balanced” by my right to “security”, which requires resources from nature in order to achieve it.

Neither also does liberty mean surrendering oneself to some kind of “spontaneous order”; properly understood, the concept of such an order refers to institutions that emerge indirectly as a result of individual humans each pursuing their own unique ends, as opposed to through the direct design or agreement of any handful of them. Money is a case in point. The concept does not warrant the likening of society to some kind of biological organism (where the individual cells and organs have no independent will) nor does it mean that order unfolds in a manner akin to evolution or natural selection, a process that (excluding the possibility of divine intervention) is inherently purposeless. Such analogies are metaphorical in the very strictest sense.

Rather, the sociological concept of liberty arises because a human’s life must be led by using the resources of nature to further the ends that he desires. Individual humans, however, run into conflicts over how these resources should be used as they each want to use the same resources towards their own, competing ends. In other words these resources are interpersonally scarce. This is the starting point of all political philosophy – how to resolve conflicts that arise from the scarcity of resources in the world. Indeed, all political philosophies are little more than attempts to solve this problem. The rights that derive from these solutions are property rights, the strongest of which is ownership – the granting of the power of disposal over a scarce resource to one person at the exclusion of all others. There are two key aspects that we can deduce from this fact. First, those philosophies that view property as oppressive or as an affront to liberty simply dismiss the sociological problem rather than answer it. To outlaw any property at all keeps everyone in the original position of conflict in which we are all fighting over resources. Similarly, abolishing property because it “stops everyone” from using a resource simply begs the question – a property right has to be granted precisely because everyone cannot use the resource. Any widespread attempt to abolish property has merely fallen subject to the “iron law of oligarchy” where a few elite caretakers administer the resources and have to determine the uses to which they are put, with any residual “right” that the Average Joe has to a resource remaining as an empty, hollow shell. Any incisive concept of liberty, therefore, has to accept that other people’s desires to use the means available will be an obstacle in one’s own life and hence it must utilise the concept of property. Secondly, it shows why all consequentialist or utilitarian arguments that attempt to show us why “we” are “better off” with liberty than some alternative miss the point. For the precise problem is that we all think that there are different consequences that are better than someone else’s and so we need to decide whose consequences should prevail with the scarce means available.

The essence of liberty, then, is in how it defines property rights – quite simply, that you are entitled to the ownership of your own body and the external matter of which you are the first user-occupier or the latter’s voluntary successor in title. No one, therefore, can act violently against your own body or against the previously ownerless matter that you brought into use or acquired in trade through voluntary exchange. Within this sphere of ownership you can do anything you want. No, as a free individual you will not have a guaranteed freedom from hunger, from sickness, old age, death and so on (although the free market has been shown to increase a human’s power over nature more than any other system). And the same rights held by every other human will get in your way from time to time, if not all of the time. But only by defining liberty in this manner can libertarianism address the scarcity problem and be ideologically distinct from other attempts to do the same. The justice of liberty defined this way is, of course, another matter.

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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.

The Scope of Moral Enquiry Part Two – The Ethics of Violence

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In part one of this three-part series of essays the necessary conditions for morality to arise in the universe were outlined. In summary, morality can only arise between agents who use means to derive ends through actions; interpersonal conflict arising from the scarcity of these means is the fertile ground that may begat moral norms that determine precisely how the conflict should be resolved.

Parts two and three will divide the discussion of morals as they arise into the spheres of violence and non-violence. The reason for this treatment will be become clear but suffice it to say for the moment that the scope of the morality of violence is very important in understanding how the moral order unfolds. This scope will be the concentration of this part of the series.

Let us begin with where we left off in part one – two agents have run into a conflict as they wish to devote the same means to their own, respective ends.

The Form of Means

Means in the universe are physical means. They are tangible objects, the tools which an acting being uses to achieve his ends. Even means which immediately appear as intangible are ultimately derived from physical matter. One’s mind, for example, must reside in the brain and its limitations result from its physical capabilities. Likewise, so must its ideas; or, ideas may exist on a piece of paper if they are written down, transferred from the brain to external matter. While thoughts and ideas are therefore not tangible they ultimately derive from tangible matter.

Scarcity therefore arises because of the essential physical limitations of means. The physical properties of matter that acting beings classify as means entail that they cannot be occupied or used simultaneously by more than one being. It must be stressed that this lack of ability is not owing to the physical qualities of the matter per se. Rather it is wholly determined by the minds of the acting agents. It may, in fact, be possible for beings to fulfil their ends by “sharing” matter in different degrees. Air, for example, exists in such abundance that each individual is able to draw enough of it exclusively without ever running into conflict with anyone else. A park bench may be shared by two people. But ultimately, the fulfilment of any end requires an agent to have exclusive use over the means to fulfil that end. People drawing in a lung full of air each can do so independently, but they cannot draw in the same air particles. Two people on the park bench may be sharing the bench but they must exclusively occupy their part of it. Or, to suggest a third example, people swimming in a communal pool may be sharing the pool peacefully and without interference of each other but they cannot each occupy the same particular part of the water simultaneously. If, in the minds of acting individuals, the ends they seek can be fulfilled by dividing matter continually, as we can with air, the park bench or the communal swimming pool, no conflict of scarcity will arise. But at some point the division will progress to a stage when to take it further would no longer support the ends of one or more acting agents. For example, if a third person wants to occupy the park bench then he may not be able to do so in a way that all three of its occupants can use it to satisfy their ends. If the pool gets too crowded then no one would be able to swim anywhere. It is at these points, when ends start to become unfulfilled, that the division of matter can progress no further and scarcity now exists. As it is no longer possible to divide matter any further to achieve the ends of all interested parties, it follows that if the matter is to be used for any end at all then this must be by way of a grant of exclusivity to one set of ends to the detriment of all others. Theoretically we could get to the subatomic level before conflict starts to exist – not, perhaps too outlandish if two scientists, living without conflict hitherto, suddenly find themselves wishing to use the same subatomic particle for their different, experimental ends. But at some point however deeply we go into the physical structure of the matter of which the means consists, if there is a conflict concerning these means then it is a conflict of exclusivity – that the means can only be devoted to fulfilling one set of ends at the total exclusion of an alternative set of ends1.

It is at this point that morality is poised to arise to answer the question whose ends should be fulfilled at the expense of and at the total exclusion of all others with the scarce means under conflict. But why does it arise and, more importantly, will we know what its content is? In answering these questions it is important to stress again that the trumping of one end over another is a distinctly physical contest – if two or more agents attempt to use the same means contemporaneously for their independent ends then their collision is physical. In short, we may say that they are behave violently. If any ends are to be fulfilled at all then all competing agents have to be physically ousted from the means to the benefit of one agent. First and foremost, therefore, morality is concerned with the sphere of violent conduct by one agent against another. It might not be even too outlandish to suggest at this point that morality, if it resolves conflicts over scarcity that are manifest as physical clashes, is an alternative to violence. For violence is the very physical embodiment of the conflict over scarce means and if morality arises to resolve these clashes then we may say that all morality is inherently anti-violent. This, as we shall see below, is indeed the case and what will be proven (in part three) is that any ethic promoting violence is in fact absurd and contradictory.

Conflicts over Individual Bodies

Let us now proceed to examine systematically where conflicts over scarce means will arise and attempt to deduce moral content from these situations.

The most basic form of matter over which conflicts can emerge between agents is their respective bodies. For example, A wishes to use the means of B’s body for his (A’s) ends whereas B wants it for his own ends. They might, of course, resolve the problem by a physical clash – in short, by violence. A takes B’s body violently and puts it to his own use. B may try to struggle to repel A with the conflict ultimately being decided by who is the stronger. But this result is not the action of morality, viz. what should happen. Rather the outcome is determined by what will happen when a stronger being is pitted against a weaker one. If the stronger person gaining control of the weaker’s body is to be considered just then there must be something further than the mere fact of strength that proves this. What, then, is the moral result to this conflict and what will be the outcome? More importantly, how can A and B come to know the content of the moral norm that prescribes their conduct in relation to each other’s bodies?

For a moment we must return to the universe where an acting agent, A, is the sole conscious being. There is only his body to use as means towards his ends through action and there is no other external matter. A therefore uses solely his own body as tools in the fulfilment of his ends. But in order to do this he must assume control over his body or at least the parts of it he uses as means for the moment. However not only does he assume control but he also, in his mind, believes that he can in the sense that it is permissible. In other words, his action reveals that in his own mind he believes he is fully justified in taking complete control over his body when he decides to use it as means in the fulfilment of his ends2. In all likelihood he would never actually ponder the question as to whether he should assume such control over his body and would for his whole life merrily go along using his body for whatever purpose he saw fit. But suppose that he did ponder the question – suppose that he suddenly had an alarming thought that he should not assume full control over his own body. How would he come to know the answer? Is he stuck without any ability whatsoever to determine the resolution to this conundrum that has struck him? Fortunately not, for in merely posing the question in the first place, let alone attempting to answer it, our agent has to take control over his body. The question takes the form of the thought that it is the product of his brain. The brain, in turn, is supported by the other organs, the heart, the liver, the lungs, the nervous system and so on and cannot operate without these organs. In short, he needs to take control of at least the majority of his body in order to even ask the question whether he should take control over his body. His answer is therefore provided immediately by an impossibility-proof. For if he attempts to answer the question in the negative, that he should not take control of his own body, he is immediately caught by a contradiction – for how can he come to the conclusion that he should not control his own body without, in fact, taking control of his own body?3

What is revealed therefore is that a person can justify his control over his own body in one of two ways. First, by taking de facto control over his own body, revealing his belief that he is permitted to do so. Secondly, should he doubt this permissibility, his justification is proven by pondering the very question.

In summary, therefore, in a universe where he is alone A believes that he is justified in assuming control over his own body. If B is introduced into this universe, A suddenly finds himself having matter that is external to him which he may desire to use as means in the fulfilment of his ends. He might not so desire, of course, in which case there would be no conflict. But suppose he did, suppose that A desires to use B’s body for his own ends and B wishes to use the same body for his own ends. What happens? Whereas for the entirety of his life A has not had to ponder his control over matter that can be used for his ends (and if he does he can safely conclude that he should indeed control it), for the first time he now encounters a being which also claims control over this matter. Why does morality arise in this situation and is there a moral outcome, a norm, which can be determined from this situation that will resolve the conflict?

We will recall that A claims control over his own body either by using it or by pondering whether he should have such control. A can therefore approach the matter of B’s body in one of two ways – he can either question, in his own mind, whether he (A) or B should have control; or he can invade B and attempt to take over B’s body. In both cases A is demonstrably justifying control over his own body as he cannot entertain even have such thoughts or carry out such actions without actually controlling his body. If A therefore assumes control over his own body and believes it is justified, what does this say about his potential control of B’s body?

There are only three possible outcomes to this question. First, that A should control B’s body or B should control A’s body; secondly that A and B should control equal shares of each other’s bodies; or that A and B each should control their own bodies exclusively. If A ponders the first possibility then he may declare that he should control B’s body (he already, as we have noted, cannot conclude that B should control A’s body). But how can he know this? In order to pose and answer this question he has had to claim control over the faculties of his own body. But how can he possibly claim control over his own body yet deny it to B? What is the trump card that A possesses? B is not an unthinking, un-desiring, un-choosing piece of matter like a rock or stone or anything else that A has encountered thus far; rather B is just like him, a desiring, choosing and acting human being. What is the difference between A and B that permits A to claim control over his own body yet deny B control over the latter’s body? If A thinks that he can deny B control over B’s body then A is behaving contradictorily by even having that very thought. For if he denies B’s control of B’s own body then A has to justify the control over his own body. But he cannot do this without controlling his own body. Therefore it is not possible to determine that either of A or B should control the other’s body. The same is true if A has no thoughts whatsoever and violently invades B. To carry out this violent invasion A must take control over his body. But he cannot justify doing so without also justifying B’s control of his own body. In short, A’s claim to control his own body renders his claim over B’s body void.

What of the second possibility? Again, to answer this A has to claim control over the faculties of his own body. But if part of his body should be controlled by B then does he not have to ask permission of B before he can ponder this thought? And if B is to give permission, then does B not in turn require the permission of A, the part controller of B’s body? And so and so on in circles until nothing is resolved. It is clear that this possibility is nonsense and must be discarded.

We are left, therefore, with the third possibility, that A and B should each control their individual bodies. Each of A and B can justify this without the problems inherent in the previous two possibilities. Each can claim control without any contradiction and neither has to seek the permission of the other. And by either pondering the question or by attacking the body of the other, each is estopped from claiming control over the other’s body by the necessary control he has taken over his own body.

Morality has therefore arisen as a result of this chain of logic. That A and B each are entitled to control of their own bodies and their attempts to prove control over their bodies renders their claims to the other’s body null and void. But what has been the effect of this morality? It has been to prohibit the physical clash. It has stated that one person may use a collection of matter as means for his ends whereas the other person may not. Morality has granted a right of exclusivity over the disputed matter to one person and denied it to the other. As the physical clash has been prohibited we may say that the moral result is anti-violent. It is this anti-violent result that is at the base of what is known as the non-aggression principle (a principle that, we might say, should even be elevated to an axiom). For any attempt by either A nor B to deny the non-aggression principle is to prove it, for each would, by merely having the very thought, simply prove it.

The claim to the existence of the non-aggression principle, the truth that we have deduced from the circumstances of moral enquiry, becomes stronger if, rather than merely pondering the question of bodily control independently, A and B engage in a debate as to who should be able to control B’s body. Again, there are only three possibilities that they can entertain – that one of A or B should control the body of the other; that they should each control shares of each other’s bodies; or that they should each control their own bodies independently of the other. Let us again consider these possibilities in turn. The first scenario immediately runs into a difficulty because the object of the debate is to determine who should own whose body. But the debate itself requires, as a precondition, that each participant in the debate should have his full ability to contribute to it and he can only do so if he has control over his own body. If A should control the body of B then the latter must seek the permission of A to participate in the debate. But given that we do not know the identity of the controller or the controlled until after the debate then this permission cannot be sought, nor can it be granted. For neither A nor B knows whether he is the grantor or the grantee and neither can act accordingly; and to determine who is who they need to debate, but cannot do so until they know that they have permission to open their mouths! This possibility is therefore an absurdity as the debate could not even occur if one should control the body of the other4.

The second possibility also descends into an absurdity. For again, neither could participate in the debate without the grant of permission from the other. But to grant this permission requires the use of one’s body. So the grantor of permission would have to seek permission to grant this permission! It should be obvious that this could never be done and this possibility is therefore excluded. The third possibility – that A and B should each control their own bodies – is the only one that runs into neither contradiction nor absurdity. Both A and B, with full control of their faculties, can enter and participate in the debate. The fact of debate therefore reveals that each participant should control his own body. If either A or B argues or to attempts to debate otherwise it is immediately revealed to be contradictory because both A and B must, by the very action of debating, prove that they should control their own respective bodies5 6.

Terminology of Rights

Up until now we have talked only of “control”, “controllers” and “controlled”. It is appropriate at this juncture to insert some terminology that distinguishes the types of right and obligation that emerge in the moral order we have been discussing.

Specifically, a person who has, in this instance, the moral right to a piece of matter is said to be the owner of that matter. That matter is then said to be his property, over which he has ownership. Morality therefore grants rights of ownership over matter that exists in the universe, matter that is the subject of conflict arising from the scarcity of this matter in the minds of different moral agents.

All of political philosophy attempts to resolve the problem of scarcity of means within the universe by establishing rights to ownership within the sphere of violence. Fundamentally, therefore, political philosophy is concerned with who should own what and whether they can use violence to enforce this claim. We have established here that each person should own his own body and that violence cannot be used to enforce the claim of anyone else. Each person therefore has a right to self-ownership, and from this right of self-ownership we derive what we termed above as the non-aggression principle. Any moral right that someone has to another person’s body must take effect within the sphere of non-violence and in harmony with the non-aggression principle, which will be the subject of the third part of this series. Any philosophy that advocates anything otherwise is essentially a philosophy of slavery, that one person, a master, may violently enforce his use over another person’s body. In a direct form slavery has officially been discredited in modern political thought. Now political philosophies are concerned with the ownership of external goods, things that are not part of our bodies but part of the outside world. These things are recognised as scarce by individual humans and political philosophy arises to solve this conflict. To this, we shall now turn.

Conflicts over Unconscious Matter – The Justification of Private Property

Individual humans, then, may enter conflicts not only over their own bodies but over external matter that they wish to use as means to bring about their ends. How does morality arise in this type of situation and which rights does it grant?

In just the same way as if the only matter in the universe of a lone human being was his own body, a lone human also would happily pick and choose whatever matter he stumbled across to use towards the fulfilment of his ends without ever considering whether he should indeed do so. When a second person appears, however, what happens?

In the first place, we need to examine the status of physical, unconscious matter that simply exists in the universe. As we established in part one, it has no desire or choice that begat action towards ends. It is dead and inert, subject simply to the laws of physics to which it becomes subject and any one time. It therefore does not control and, hence, own itself, nor does it feel any utility that derives from itself. But neither, at this point, is there any human that owns it either. Ownership can only arise as the outcome when the matter is the subject of a conflict of scarcity. But when there is no conflict any talk of ownership is nonsensical. The typical example is, again, the air we breathe. Because no two humans find themselves competing for this means as an object of their individual actions, no question of ownership arises and no one ever says that they own portions of air. Rights and ownership are meaningless concepts without the condition of a conflict arising from scarcity.

The first thing that is required then is for at least one individual human to recognise a good as scarce. But a human does not recognise a good as scarce simply by sitting and pondering the matter; rather he only recognises something as scarce if he makes it an object of his action. In a state of non-action, a good may be delivering utility to one or more humans but this will be unvalued utility – essentially, that the human does not regard the utility provided by the good as preferable or less preferable to any other. The essence of valuation is the preferring of one end and the setting aside of another because the means are not sufficient to sustain both ends, i.e. the means are scarce as the human feels he has to make a choice between ends. A human acts, then, because the means available, the good, are not furnishing the highest end that he desires when having made his choice. The object of his action is to divert it away from furnishing a less valuable end towards furnishing a more highly valued end. Action in relation to the good must clearly be physical – a person has to physically divert it from one end to another. In the terminology of economics this is to produce one good from another. The resulting good, post-action, is therefore a different good from the one that preceded the action and it is this difference, the later end that has been gained vs. the previous end that has now been discarded, that proves value, the later end being preferred to the earlier end7.

Before any conflict arises from scarcity, therefore, one human must have physically occupied the object at one point in time. The conflict emerges when a second person, B, attempts to do so later in time – B wishes to divert the good from A’s ends towards his own (B’s) ends. If it was already furnishing utility for B in the state in which A had placed it there would be no conflict. B’s ends can only be achieved by a physical diversion of the good. It is, therefore, the physical occupation of objects, making them the subject of one’s action, that prove their scarcity and hence provide the genesis for conflicts with others. Any conflict, therefore, involves a prior user of the good followed by later or potential users of the good.

Knowing this, then, what are the possibilities that can be derived from an instance of a conflict arising from scarcity? There are five:

  • That no one should own the good;
  • That each person in the world owns a part share of the good.
  • That the original occupier should own the good;
  • That a later occupier should own the good;
  • That each successive occupier can demand a part share of the good;

Let us consider each of these in turn.

If no one should own the good then this doesn’t resolve the conflict; rather it pretends that it does not exist. For if no one is able to own it then no one is able to use it; we stated above that conflicts form when a good, a means, is not able to furnish any end at all except by grant of exclusivity. If no one is able to control the matter exclusively then no one can make use of. If no one can make use of it then no one can fight over it. So the effect of this prescription is to simply outlaw conflicts arising from scarcity by stating that you may not make matter the object of your action. Apart from the fact that this would result in no one person being able to make food or water the object of his action and hence is tantamount to stating that each individual human has the moral obligation to wither away and die, the only justification for this outcome is some kind of egalitarianism – that one person may not own a good because no one else can at the same time. But the concept of equality in relation to physical goods can only be measured in one of two ways, either by the quantity of the physical matter to which a person is entitled or by the value that it holds. If no one is not allowed to make physical means the object of his action then, in terms of measurement of the physical amount of matter which each person may own then equality is satisfied. But the effect might be to render a psychic inequality. Given that such a situation will, as we have indicated, necessarily result in death, one person may derive a calming sensation from this thought and enjoy his final days peacefully while another may be fraught with worry at his impending doom. Has the prescription of universal non-ownership had an equal effect upon each individual human? If you ban both a sighted man and a blind man from owning a white stick, has the loss resulting from this prescription been the same for both of them? Alternatively, what if a person feels that he is better off from not having to own any goods? Hasn’t he been privileged while the person who desires to own goods has been penalised and does this not render a situation of intolerable inequality? Or in other words why should the value of avoiding conflict be the same to all parties? Some humans might be happy to be relieved of having ever running into conflicts over scarcity with other humans whereas others may relish the prospect.

The second potential resolution is that everyone in the world owns a part share of the good. But this is nonsensical for two reasons. First, the question of ownership only arises from a situation of conflict and this conflict is only generated when two or more persons recognise the good as valuable. To talk of ownership when there is no conflict (as there clearly is not when a single person recognises an object as valuable) is redundant. Secondly, if everyone owned part shares of every good in the world then each person would be required to ask permission of everyone else in the world before he could use any good at all. Yet how is a person to do this? How is he supposed to know the existence of and communicate with every person in the world in order to extract permission? Even if this could be achieved it could only be done so with physical goods, and so he would have to take ownership of physical resources in order to determine whether he has permission to take ownership of physical goods. Such circular reason reduces this possibility to absurdity. Moreover, if you grant someone else the permission to use a good it must mean that that person may use a good, over which you have part share, exclusively. If a person is to divert a good towards an end it must be to the exclusion of all others, as we noted above. Effectively, therefore, the act of granting permission is to de facto dispose of your share of ownership. Any residual “ownership” that is retained would simply be a meaningless, hollow vessel. The granting of permission is, therefore, akin to a part owner not regarding the good as valuable. But he has already indicated that he does not regard it of value by not making it an object of his action so the whole structure of part ownership and permission granting is superfluous8.

Having disposed of the possibilities of either no one or everyone owning a good, we must turn then to the third to fifth possibilities we outlined above, which consider the claims to ownership of each successive user in time of an object.

The third possibility is that the original occupier should own the good. Looking at his making use of a good in isolation, this action produces no conflict. By being the first user in time of a good, a person necessarily demonstrates that he and he alone recognised this good as valuable. We did, however, demonstrate above that when the good has not been the object of action it is in the state of being a free good, i.e. that it may have utility that is unvalued and this utility may serve many different people. Is it not possible that one person could come along and make a free good the object of his action, depriving everybody else of the utility that has hitherto been provided? It is indeed possible; in particular sights, sounds and smells every day exude from the world around us and if parts of this world are made the objects of other people’s action then we may suddenly find ourselves deprived of something in which we previously found utility. The building of a property on neighbouring land may, for example, exclude adequate sunlight or a view of a landscape that was, until now, enjoyed for free. But the whole point is that if a person has not made something the object of his action then whatever utility it was providing was valueless – i.e. he simply does not prefer one alternative over another. If a person values a view more than not having it then he will take steps through concrete actions to ensure that it renders that service perpetually. By not doing so he indicates that he does not care one iota whether the good continues to furnish the free utility or it does not – that is precisely the nature of value, that one thing is preferred to another, but by not making the good the object of his action there is no value to speak of and he has not “lost” anything at all. There is, therefore, no conflict generated by a person being the first user in time of a good. It is only when a second person attempts to do so a conflict is generated and it is this second person, not the first, who is the “cause” of the conflict. Indeed it is this very reason that the original owner is able to justify his claim of ownership over a good. For in doing so he does not arrogate to himself that which he denies to anyone else – he values and so gains, but no one else has lost anything at all. There is, therefore, nothing contradictory when he says “I should have this but no one else should” as no one else holds any value in the good which he has appropriated. Might one counteract this by saying that, after the original occupier claims ownership over the good, everyone else has then lost the right to become the original owner? Such a view can only derive from a misunderstanding of the nature of rights. Rights only arise as a result of conflict, but between ownerless goods and humans there is no conflict. No one has a “right to become the first owner” in any meaningful sense as against whom would this right be enforced? Who has the corresponding obligation? Does the good have the obligation to become owned by you if you are the first user of it? Or is it every other human? Clearly goods, i.e. dead matter, cannot have obligations for the reasons we explained in part one. We are therefore left with the latter, each other human being. Certainly they cannot interfere with you making use and occupation of hitherto unused goods, but this is not because you have a right to appropriate goods but because they have no right to inflict violence upon your body. If another human blocks you from taking ownership of goods then either he is violating your right to self-ownership or he is the true owner of the goods in question and hence you are invading goods that he owns. There is no other possibility. No one, therefore, loses any “right” or anything at all by the first user-occupier claiming ownership over a good. For this reason, we need to move onto considering whether a later user in time should have a right to ownership that trumps that of the first.

The fourth of our possibilities, then, is that a later user should own the good. While the effect of this possibility is to grant exclusive ownership to a person who recognises the good as valuable, this only applies until someone else recognises it as valuable also. But this second person only enjoys ownership until a third person recognises it as valuable, and so on and so on. It should be clear that this possibility is simply tantamount to legalised theft, each person being able to simply take whatever he wants from another person. That alone suggests, prima facie, that this possibility cannot be defended. Indeed, an immediate practical problem is that, once deprived of a good, the first owner could then qualify as the third owner and would immediately try to take back what he previously owned. People would therefore behave as if the first owner was the true owner, attempting to defend and snatch back their property as soon as it was claimed by a second person. The outcome would therefore be based on de facto possession which can only be decided by violence, i.e. which person is physically able to wrestle the good from another. The result, therefore, is not to resolve conflicts but to actively promote plunder, pillage and war of all against all. However, the main reason why the second person cannot come along and claim ownership of a good is that now the good has been valued. Whereas the first owner was the only person to recognise the good as valuable and hence could claim ownership without inflicting any loss on anybody else, the second owner can only do so by inflicting a loss on the original owner. The act of the second owner would be to divert the good to an end which he prefers and the original owner does not. The second owner faces the problem, therefore, of having to prove why his ends should be preferred to those of the original owner. How can he prove this? Unfortunately for him, he cannot, for value is indicated solely by the act of preferring one end and setting aside another. We can say that one person prefers end X to end Y when, through action, he embraces the former and discards the latter. But we cannot measure this, we cannot say by how much end X is preferred to end Y. There is, therefore, no “measurement” of value that enables us to compare relative values between owners. All that we can conclude from a second owner demanding a good from an original owner is that the second owner prefers his ends to that of the first owner and the first owner prefers his ends to that of the second owner. But even if this was not the case, even if we could say by how much one person values a good more than another, why should this justify a second person taking away the goods from a first owner? The loss is still a loss to that first owner that isn’t offset by any gain to him. Why should, in a world of being able to measure value, the fact that his loss is “small” be outweighed by someone whose gain will be “large”? Why is the “larger” gain of greater import that the “smaller” loss?9 In any case we must reiterate that the second occupier actually doesn’t lose anything at all by the first owner’s enforcement of his right to the good. Not only does the first owner’s original appropriation cause no loss of value to anyone, as we indicated above, neither too does his continuing claim to ownership. When the second person arrives on the scene he does so without possessing the physical good or being able to enjoy its utility. When he leaves empty handed he is in exactly the same position – without possession of the physical good and without being able to enjoy its utility. The first owner’s enforcement of his right has not caused any change to the second person’s condition whereas the second person’s enforcement of his (the second person’s) right would very definitely cause a loss to the first owner. Additionally we might consider the fact that it is often the combination of the good and the original owner’s labour that has produced the good into a final good that renders it more attractive to the second person than it was when it was in its ownerless state. A completed house is likely to be more valuable than a pile of un-quarried stone; a pile of harvested wheat is likely to provide more attractive pickings than seeds and an unploughed field. Indeed plunderers throughout history have seldom taken goods upon which very little labour has been exerted by their original owners – they have always taken final, finished goods that are in a state of ready consumption (or capital goods, i.e. machines and tools that render the act of production less burdensome and laborious). Even where this wasn’t the case which country would be more likely to be suitable for conquest – one where there was rich, fertile soil or one that was mostly covered in desert? People naturally, all else being equal, gravitate towards the goods that will provide them with their ends for a minimum of their own exertions and the effect of an original owner producing goods with his labour is to reduce the necessity of a second person’s labour if the latter can successfully confiscate the good. The result then is that the second owner not only takes the good but also the original owner’s labour – his demands as a later owner in time are not only for the good but for the benefit of the original owner’s effort and toil. Indeed the only reason why anyone ever wants to steal something is because it’s less work for them to do so than going to the effort and expense of acquiring the good through exchange or through production of it oneself. For this reason, then, any claim of the second owner over the first amounts to the enslavement of the first owner that funds the parasitic existence of the second person10.

For all of these reasons, then, there is no support for the claim of a later person in time to the ownership of an already owned good11.

The fifth and final possibility to consider then is where each successive occupier of a good can demand a part share. We needn’t dwell on this for long as it fails for a combination of reasons that the second and fourth possibilities fail. In particular, it should be noted that this solution requires the sharing of the good in question. We’ve already discussed how this does not resolve the conflict but merely prolongs it as none of the prospective owners can fulfil his ends without exclusive ownership over the good

In sum, therefore, the only possibility that is just is that the first owner in time of a good, the first one to subject it to his action, is the owner of the good. All other possibilities lead to absurdity and cannot be defended.

Conclusion – Property, Violence and the Law

In order to contravene the principle that the first owner may not own his good it requires a second person to act physically in relation to the good – in short, he must act with physical aggression, i.e. violently, towards the owner and the good. If he doesn’t then all is left well alone and the first person continues to own his good and the second goes away empty handed. What we have revealed then is an extension of the ­non-aggression principle that we outlined above. That morality arises, in a state of conflict arising from the scarcity of means, to pronounce that every individual human owns not only his own body but also the previously ownerless goods that he physically appropriates and that this ownership can only be sustained by the non-violence of everyone else. Therefore any action by another that contravenes the physical integrity of (i.e. acts violently towards) another person’s body or originally appropriated goods is immoral. The effect of morality, therefore, is to pronounce that violence is inherently immoral.

We shall end this survey with a summary of the above while identifying it with specific terminology that is applied to the norms that we have outlined.

  • Every individual human owns his own body exclusively and has the right to its physical integrity, vesting in him the right to self-ownership;
  • Every individual human, after appropriating previously unowned matter, has the exclusive right to the physical integrity of that matter hence becoming its owner; the matter in question becomes his property. The institution of this method of ownership (coupled with voluntary exchange) is known as private property;
  • These two principles form what is known as the non-aggression principle; although as we have suggested above we may also term it the non-aggression axiom, but the former term is more widely used;
  • To argue to the contrary of these two principles is either contradictory, absurd, or both;
  • Social norms that derive from the non-aggression principle (you should not murder, you should not steal, etc.) are known as laws; the body of these norms together is known as The Law. Laws can be distinguished from other norms such as customs, manners, etc. in that they are concerned with violent action. This will be elaborated in part three.

In part three of this series we shall consider the morality of non-violence. We shall first explore some common objections to the non-aggression principle before providing its ultimate justification. We will also consider the crucial area of defence and enforcement before proceeding to examine the place of other moral norms and moral theories, concluding that these can only ever take effect non-violently. Finally we will speculate upon the content of non-violent norms that may emerge in a world where the non-aggression principle is adhered to.

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1These conflicts can arise from one of two sources – either the quantity of means diminishes or the number of acting agents viewing the means as a tool for their ends increases. In both cases the ratio of ends to means increases.

2By this I mean control de jure – that he should be able to take full control even if he does not physically possess it at a particular moment. We are, at this point, trying to avoid the language of rights, obligations, and specifically of ownership which are interpersonal concepts. In effect, however, what our lone agent is claiming over his own body is ownership.

3We will leave aside the question of whether this justification of control over his own body extends to areas of the a person’s body that are not necessary for sustaining the brain such as the arms or legs. Suffice it to say that these are equivalent to external matter which will be dealt with below.

4What if, as may be contested, one of the two, say A, believes himself to be the true controller of B and believes himself to be granting permission to B to engage in the debate? But this would be an absurdity also, for there are only two possible reasons for A to enter this debate – either he wants to determine the truth or he is debating B for some other reason, say mere amusement. The former reason admits the possibility that A should not control B and the circumstances of the debate are as we just outlined. If the reason is the latter, then there is no debate at all and A’s control of B is excluded for the reasons that we explained above.

5Another possibility is that A and B could agree to fight over each other’s bodies, the victor claiming ownership over the loser’s body. But this would mean that the violent outcome is then based on consent and that the prior control of A and B over each other’s bodies is recognised.

6The leading exponent and, indeed, the pioneering expert of this line of thinking is Hans Hermann Hoppe. See his On the Ultimate Justification of the Ethics of Private Property, Ch. 13 in The Economics and Ethics of Private Property, and his The Ethical Justification of Capitalism and Why Socialism Is Morally Indefensible, Ch. 7 in A Theory of Socialism and Capitalism.

7We must emphasise that strictly, the value is in the end that the good provides as compared to a competing end rather than in the good itself; it is merely imputed back to the good and hence we talk of a “valuable” good. When we say that a good is transformed or produced this doesn’t necessarily mean that, from the point of view of atoms and molecules, the good is a different “thing” from what it was before the act of production. Rather, the difference is that in the actor’s appraisal the good, before making it the object of his action, was furnishing a different end from the one after. This act could be as simple as moving an object from one place to another. It is, therefore, a mistake to believe that production involves some kind of “creation” outside of the imagination of the acting human. For no person can create matter as such, merely physically rearrange the form that it takes so that it provides one end as opposed to another. The fact that the value is in the end rather than in the good itself is demonstrated by the furnishing of services as opposed to goods. When we say that goods are traded, it means that the physical object furnishing the valuable end is itself exchanged. With “services” however, the goods that furnish the end are simply hired for a period of time and are not exchanged outright. With a taxi journey, for example, you pay for a space in time to use the labour of the taxi driver and his vehicle, but you do not end up possessing these physical goods. What you paid for was the end that was furnished and not the goods themselves. It should be clear that what economists classify as “services” as opposed to “goods” are most often rendered by labour (incapable of outright trade) and durable goods that can be parcelled out to use by different people in slices of time. But all valuation is of the ends, not of the goods that are used to produce the ends.

8A part share of ownership over every good is the theoretical justification encountered in the rhetoric of “public” ownership of goods – that “we all” own everything or that “the people” own everything. However, because of the problems we outlined this always falls subject to the “iron law of oligarchy” where a select few act as caretakers for the goods in question and devote them to uses on behalf of the populace. No person outside of this elite has any de facto, exercisable ownership over anything and it is clear that the goods can only be devoted to uses desired by some people at the expense of uses desired by others. In short, if everyone owns a good, no one does.

9It is this aspect that provides the first insight into why non-violence, private property and free exchange is the only way that all humans can live in harmony; for the contrary necessarily entails that someone must experience loss when another gains.

10As Bastiat puts it when commenting on Communism: “Community applies to those things we enjoy in common by the destination of Providence; because, exacting no effort in order to adapt them to our use, they give rise to no service, no transaction, no Property. The foundation of property is the right we possess to render services to ourselves, or to others on condition of a return. What Communism wishes to render common is, not the gratuitous gift of God, but human effort – service.” Claude Frédéric Bastiat, Property-Community, No. 8 in Harmonies of Political Economy, Book One, No. VIII in The Bastiat Collection (2nd ed, Ludwig von Mises Institute), p. 687.

11One final consideration – what if we said that a latecomer could simply declare that he owned a good that another person hitherto owned? Could this be defended? No, for this situation would effectively be the same as that in our second scenario, with everyone owning a part share of the good. For if anyone can enforce the right to deprive another person of the good by oral decree then this right is vested in him by virtue of his status as a human being and hence it is extant in all humans across the entire world (i.e. that the right exists in each person prior to any conflict). Indeed, what would happen is that anyone, at birth, would simply, from wherever he stands, declare that he owns the entire world and we would literally end up with everyone claiming ownership over everything. And hence, once again, in order to act in relation to any good at all a person would again have to ask permission of everyone to use the good, with all the absurdities that this entails.