Decentralisation and Liberty

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In some recent essays concerning the UK’s referendum in June to determine its membership of the European Union, and the virtues of small states as opposed to larger states, we elaborated some themes regarding how decentralisation and decentralising processes are a boon for individual liberty and a step towards harmony and economic progress. This essay will gather these thoughts together with an emphasis on how small or, rather, optimally sized institutional units pave the way towards two things that not only libertarians, but also everyone else, will claim to want to achieve – economic prosperity on the one hand, and minimal war and conflict on the other.

The mantra of statist and, indeed, mainstream political thinking is that unity, centralisation and the consolidation of states and state institutions is the way forward for peace and prosperity. Not only does this mean larger state institutions with more power but also the fusion of individual states into larger territories under a single jurisdiction. In some ways this seems plausible, even to the libertarian. Wouldn’t unified laws will aid certainty? Wouldn’t we be better off if there were no borders or tariffs to impede the trade goods and workers? And surely the possibility of war will be diminished if we all join together under one, unified banner?

The main problem with this view, however, is that it places the state, state institutions and what these institutions wish to achieve at the centre of society. All of the millions of individual people and thousands of non-state, voluntary institutions that are motivated by their own desires, values and choices are ignored or at least subsumed by the grander edifice. Most lay people who hold the centralising view probably do so naively, but it is the primary preoccupation of statists and intellectual elites that society is something to be managed, controlled or directed by them and those like them while all of the lesser beings should be made to obey quietly with the confidence that their highly educated masters are doing what is best for them. Indeed, rather than seeing any value in individual, voluntary and non-state institutions, the centralising view treats the human race as one, giant, amorphous blob, like a lump of play dough that can be shaped in any way and manner that can be chosen at will – and that the easier it is for the dough to be shaped then the better society will be. Hence, the holders of this view are likely to look favourably upon institutional centralisation and consolidation which conveniently places more power in the hands of people such as themselves to achieve their shaping of society according to their visions. This attitude was rife, at least implicitly, among the so-called “Remainers” in the UK’s “Brexit” vote on June 23rd. Not only, is it believed, that all good things flow from the top down like manna from heaven, but that anyone who was in favour of leaving the EU was, in some way, stupid, backward or a kind of provincial, country hillbilly. For instance, shortly after the referendum, Professor A C Grayling called on Parliament to block Britain’s exit from the EU on the grounds that it is Parliament’s job to determine what is best for the electorate, the latter of which lack “the expertise, patience and time” to make decisions via a direct vote. The implication of this is that the people do not know what is best for them and they have blindingly walked down the path of sheer folly by voting to leave the EU, and they should instead have placed their trust in those better educated than themselves. However, he has completely missed the lesson that should have been learned from this result. The establishment wheeled out all of the big guns in order to persuade the electorate to vote for “Remain” – including the current and the three former living Prime Ministers, most of Parliament and the Cabinet, the Bank of England’s chief and other big bank bosses, the IMF, directors from at least fifty-one FTSE 100 companies, and many heads of foreign governments including the President of the United States – and yet “Leave” still won the vote. When the advice of all of these heavyweights is rejected by the British public then, instead of stooping into a sulk over the supposed stupidity of the great unwashed and demanding that they defer to the “expertise” of their so-called representatives, Grayling and his ilk should realise that such a rejection indicates that everyone is just a bit fed up of being told what is good for them and having decisions made for them by political elites. Such decisions and endless promises of peace and prosperity have brought us, in the last twenty years, two burst financial bubbles, massive money printing that has made the rich richer while failing to provide productive jobs and increasing incomes for everyone else, and at least half a dozen disastrous wars and interventions that are producing deadly blowback in the form of terrorism. What the elitist attitude ignores is that society is not something that is there to be engineered and moulded like a lump of metal in a blacksmith’s forge. Rather, it is made up of individual people who shape it according to their individual thoughts, feelings and desires, motivated by what they believe is best for themselves and for their families. An economy is not some giant machine into which goes “input” to be processed by “jobs” into some kind of “output”, nor is it necessarily true that the higher the numbers of “input”, “jobs” and “output” the better everything is. Rather, a prosperous economy is the product of individual people trading resources voluntarily in directions that they see fit so that they can satisfy ends that they wish to see fulfilled. “Society” is not a collective that demands broad brush categories such as “food” or “houses” or “better railways” etc. Rather, it is me wanting, say, a ham sandwich at 1pm on Tuesday, or you wanting a small apartment in the Hampstead area of London to rent for three years, a business wanting to invest in a small car factory that will be completed in the five years, and everyone else wanting a myriad of highly specific ends in highly specific places at highly specific times that are the product of our own choosing. The economy is not something to be directed by central banks who squash the rate of interest down to its lowest possible point through so-called “monetary policy” or “quantitative easing” in order to “stimulate” some kind of beast into life. Rather, the rate of interest reflects the strength of everybody’s individual preferences for consumption ahead of investment so that the correct amount of resources can be sustainably channelled into roundabout methods of production. Each of us co-operates, through the division of labour, to accomplish things that we each want with the resources available in varying timescales that we are each prepared to bear. It is this co-operation of individuals to achieve their own ends through the nexus of production, trade and exchange that creates a society and not any management and direction from giant, all-encompassing institutions that achieve their ends through force.

The second problem with the centralising view is that the achievement of peace and prosperity in fact demands the very opposite of state and institutional centralisation and consolidation. As counter-intuitive as it might sound, harmony is achieved by division, not unity, while the growth and strength of the human race as a whole is accomplished by the weakness, relative to each other, of its component parts. Economic prosperity, for instance, is characterised by a growing complexity of the economic system – an increasing division of labour with more and more different people specialising in more and more different tasks to produce more and more different products for more and more different people. In other words, its natural tendency is to spread outwards from the centre with more diffused, decentralised knowledge and specialisation. Growth and centralisation of the institutions that support this prosperity under the banner of unity are therefore likely to stifle rather than aid its progress. Indeed the very concept of “unity” requires the same, repeated rules for everyone and the same approaches towards everything regardless of their individual, specialist needs. Hence you get the proliferation, in large, consolidated states, of “one size fits all solutions” that attempt to force everyone through a single, “unified” channel, as though all of us with all of our differences characteristics and requirements are being squeezed through a sausage maker to create a bland, blended puree. (Curiously, those who champion centralisation and state uniformity are also the ones who squeal for “diversity” and celebrating “difference” – at least when those diverse differences are demonstrated or practised by favoured minority groups). Indeed, it is usually, if not always, the case in nature that as something becomes bigger and more complex it is characterised by greater division and decentralisation, not by increased unity and consolidation. A human being is not simply a larger version of a single cell organism. Rather, he is made up of a countless number of individual cells that coalesce into different organs and tissues, each of which specialises in different life sustaining activities. We do not have one, single “unified” organ that pumps the blood, inhales and exhales air, rids the body of toxins, acts as a nervous system and also as a skeleton. In other words as nature achieved a complex human being by decentralising and delegating various functions to different organs that act independently of, but symbiotically with each other, so too will humans only achieve a complex and prosperous society by increasing the division of labour and the degree of specialisation in more and more decentralised institutions.

Division rather than unity is also necessary for creating and preserving the conditions that economic prosperity requires – strong private property rights, minimal taxation and minimal regulation. The benefits of a large number of divided states as opposed to large, unified states, is that if one tiny state of a size equivalent to Luxembourg implements, say, an onerous tax then only that state is affected and the disruption to everyone else in the world will be relatively minimal. If that state introduces ridiculously high border tariffs then only the small proportion of global trade into that territory will be burdened while freer trade will remain for everybody else. Similarly if that state introduces burdensome laws and regulations that infringe upon people’s lives only those people will be affected. The hampering effects of state action upon economic prosperity will, therefore, be localised and minimalised in a world of deconsolidated, small states. In a world of much larger states and state institutions, however, the introduction of a tax will affect everyone; the introduction of a new regulation will affect everyone, everywhere at all times regardless of their own needs and preferences; and the introduction of a border tariff will affect the trade of everybody who wishes to trade across the lines of the large, unified state. Hence the hampering effects of state taxes and regulations and infringements upon private property are magnified as the state becomes larger. This is not all, however, for the incentives to tax, regulate and otherwise infringe private property rights are much greater in a large, unified state than in smaller states. Smaller states are, by their nature, economically weaker than larger states and are more reliant upon maintaining the free flow of goods and services from abroad which simply cannot be produced with the resources at home. Each state will therefore compete with all other states to attract foreign investment and the unhindered import and export of goods and services by minimising taxes, regulation and border tariffs. Because the jurisdiction of a small state covers only a small area, if its rates of taxation, regulation and border tariffs are relatively high then investment will simply flee to a more competitive jurisdiction which may be only tens of miles away and the standard of living in the small state will plummet. A large state, however, whose jurisdiction covers a larger territory and possesses access to a larger number of domestic resources has no such incentive to keep its tax and regulatory burdens to the minimum. With more domestic wealth and resources available and with the threat of capital fleeing for foreign shores thousands of miles away minimised, large states are free to increase their tax and regulatory predations to a much higher degree than smaller states. One of the supposed benefits of the EU is the so-called common market – the notion that goods and workers may move freely under a single tax and regulatory code. Yet any benefits achieved by having to deal with a single code are likely to be outweighed by its gargantuan size whereas a myriad of small and trifling tax and regulatory codes in a world of greater state division is likely to be a better condition for promoting trade and prosperity. Indeed, former UKIP/Independent MEP Godfrey Bloom has referred to the EU as a “customs union” rather than a market union – in other words, a single bureaucracy rather than a single market, a chance for the state to stamp out the irritating competition between states which forces them to keep their tax and regulatory rates low (as demonstrated recently in the EU’s disagreement over the rate of tax Apple had agreed to pay to the Irish government) and replace it instead with a giant socialistic paradise of government control. Instead of emphasising the “unionisation” of tax rules and regulations, those who wish to encourage economic prosperity should instead concentrate on reducing them – and the only way to do this is to make the state entities which impose them smaller and weaker, not bigger and stronger.

The argument for the “unity” and the consolidation of states becomes even more absurd when we consider the desire to preserve peace and prevent war. Murders are committed by murderers; rapes are committed by rapists; thefts are committed by thieves. If we want to minimise the effects of murders, rapes and thefts then it is obvious that the last thing we want is for all of the murderers, rapists and thieves to join together under the banner of “unity” so they are free to combine their powers to murder, rape and steal to a greater degree with increasing ingenuity. Similarly, wars are started by states and are fought between states. Therefore, if we wish to minimise wars and their effects then it follows that we need to make states smaller and weaker; it makes no sense whatsoever to make them bigger and stronger. The argument that unifying states is likely to prevent wars seems to rest on the assumption that government is the glue that holds society together and it is in fact all of the people whom they govern who are the cause of endless conflict. Thus a bigger and powerful government is able to “unite” all of these people and stop them from fighting each other. Nothing could be further from the truth. Apart from the fact that, as libertarians, we know that the state’s dependence upon force and violence for its wellbeing renders it an institution that is bound to inflict rather than prevent conflict, bigger and more powerful states are the enablers of bigger and more destructive conflicts rather than our salvagers from them. Private actors and institutions are necessarily splintered, decentralised and reliant upon voluntary trade for their sustenance. Tiny states have equally tiny tax bases from which they can command a very limited number of resources. The ability of such persons and institutions to start and sustain wars is extremely limited. Large states, on the other hand, are vast concentrations of wealth and power which not only have enormous tax bases from which to draw the means to fund eminently more destructive firepower but the advent of central banking – another creature of centralisation and “unity” – has allowed large states to fund their conflicts through monetary inflation rather than through demanding their citizens to cough up directly. So does anyone sensibly argue that private actors and small states would achieve the level of carnage and destruction that the large and powerful belligerents managed to reach in the two world wars? Does anyone believe that a decentralised world of small states and private institutions would have had the ability to force us to endure a generation and a half of potential nuclear terror during the cold war as the vast territories of the US and the Soviet Union managed to do? The most spectacular terrorist atrocity (i.e. an attack by non-state actors) of the past generation – the destruction of the World Trade Center in 2001 – killed just fewer than 3000 people, a figure which, while undoubtedly tragic, stands in the shadow of the more than 1 million Iraqis who have died as a result of the US invasion of their country. There would, of course, be fewer states left to fight each other in a world of consolidated, centralised states. However, this completely ignores the fact that the states that remain are armed with a destructive ability far superior to any minor state or territory – and especially compared to any private criminal. Any conflicts in a decentralised world would be localised to small pinpoints on the world map, affecting, at most, a few thousand people and, with the participants lacking the resources to continue fighting and disrupting trade for too long, would probably be over in weeks if not days. Contrast this to the situation in which we languish today where the ridiculous cult of interventionism and “collective security” – another banner of “unity” – forces all such local conflicts to be escalated into drawn out, global catastrophes, as the forays into Korea, Vietnam, Iraq, Afghanistan, Libya and Syria have demonstrated. It is clear that if we wish to preserve peace and prevent war then we need to prevent the institutions that start and fight wars – states – from becoming too big and powerful.

On a related note, there is a distinct air of utopianism in the minds of the centralisers and consolidators when it comes to the issue of preserving peace. War and conflict are doubtless terrible things and we would have a much better world if they did not exist. However, it is also true that, for as long as humans have walked the earth, individuals and institutions have run into conflicts with each other and that these conflicts have been escalated into violence. This is just human nature. Unwittingly, in trying to prevent all war everywhere and at any time by “unifying us” under the yoke of bigger and larger states, the advocates of such an approach have, instead, served to escalate the size and duration of wars and vastly magnify their destructive capabilities. The more sensible approach, we would suggest, is to acknowledge that war and conflict will always exist and to recognise that a superior social system will never eliminate these aspects of humanity entirely, just as in the same way libertarians do not expect a free market in private defence and security to ever completely eradicate murder, rape and theft. Our task instead is to find ways to reduce the frequency, duration and potency of these awful things as much as possible. When it comes to war only cutting the potential belligerents down to size and reducing their ability to wage destructive wars in the first place is likely to achieve this.

As we have seen, the liberating effects of decentralisation owe themselves to the relative weakness of deconsolidated and splintered states and state institutions. However, these liberating effects do not arise out of the smallness of the states and state institutions per se. Rather it is because the individual person becomes stronger relative to an institution the more decentralised and localised that institution is. Within his own immediate family, which may consist of only half a dozen people, an individual person’s needs and views are likely to be highly influential upon the other members of the family. They will attempt to provide for and accommodate these views and needs as an active part of their lives simply because the individual is close to them both physically and emotionally. An individual will have a little less influence in his immediate community or on a civil or parish council, where there are more people involved and few of them will be as familiar with him as his immediate family. However he would clearly have more influence in such a circle than in an entire town or city. And once, of course, we get to the level of an entire country such as Great Britain, a diverse nation of various economic, social and ethnic backgrounds, a single person’s lonely vote in, say, a general election becomes a drop in the ocean along with all of the other c. 45 million votes that are eligible to be cast. And if a country such as Britain was to be absorbed into a superstate such as the EU an individual may be drowned out by a chorus of 500 million other voices. The larger an institution becomes then the more its ability to focus on the “micro” issues that really affect people’s lives is progressively diminished and is replaced by a concentration on “macro” or global issues, the successful tackling of which is determined not by the wellbeing of individual people but, rather, by the measurement of aggregated statistics. So whereas, say, a family will care about whether Dad has a job that he enjoys and pays enough to feed and house the family or whether Grandma can get her hip operation in a hospital local enough for her to travel to, large state governments will instead care about GDP and the size of hospital waiting lists. Whereas a local council might focus on whether there is a sufficient bus service to a small community or whether a particular street is clear of litter, large governments, instead, have transport and environmental policies. Who in the bureaucracy is likely to care whether these policies might overlook the specific needs of one community or street some hundreds or even thousands of miles away from the capital? More local institutions are also likely to be populated more homogenously, with each person experiencing relatively similar priorities and holding a relatively similar worldview. Thus the ability to induce empathy between those who lead and those who are led is much more likely and, indeed, may produce more of a situation of symbiosis, or a sense of “working together” to further common goals as opposed to the “command and follow” routine of large states. In other words, even though a particular institution may still function officially through the methods of power and force, the smaller and more localised it is then the more likely such an institution will approach the individual and his needs in a voluntary and peaceful manner – or at least relatively so compared to much larger, faceless state institutions. Even the socialisation of property – considered to be the antithesis of libertarians, or at least right-leaning libertarians – is less likely to be a problem in, say, a small, voluntary commune where all of the commune’s members can air their views as to how their collective resources should be put to use and where all the members are likely to share a common motivation and purpose. Yet a similar exercise on a nationwide scale has always proven to be a disaster – not to mention, of course, that is easier for someone to leave a small commune than it was to leave, say, the Soviet Union.

It is important to realise that decentralisation is not necessarily about breaking every institution down into its smallest possible parts just for the sake of it. There is nothing wrong with large entities or institutions if such sizes generate advantages that could not otherwise be attained. Rather, the primary purpose of decentralisation is to devolve decision making authority (or what might be called “sovereignty”) to its the lowest possible level and that the closer this is to the individual then the more liberating the decentralising effect will be. So there is nothing wrong with lots of individuals or small institutions deciding to form a large institution to achieve a common purpose. This is precisely what individuals do when they form companies and joint enterprises. Whatever criticism we might hurl at the inadequacy of corporate governance and executive dominance, it is still basically the case that the individual shareholder of such an entity can liquidate his position if he wishes to disassociate himself from the institution. Thus the ultimate fate of the institution is dependent upon the willingness of individuals to continue its existence rather than upon its own volition. When, however, such an institution, which may originally have been organised voluntarily, becomes the ultimate decision making authority – like the modern state has become – and is able to prevent its component parts from exercising any significant autonomous power that would seal its fate, then the anti-liberating effects of consolidation and centralisation will be felt. This has been the case with the United States which, having started off as an association of small, independent, sovereign states has become, at least since the American Civil War, a compulsory union with the power concentrated in Washington DC rather than in the state capitals.

Decentralisation cannot depend solely upon formal, constitutional arrangements or treaties and it is naïve to argue that such set ups are adequate. What matters is where the de facto ability to enforce decision making power lies. An individual shareholder has de facto power over a company, for instance, because a court will enforce the sale of his shares and whatever other rights he may have. Technically, the individual member states of the EU remain wholly sovereign nations and, indeed, are so at this present time – the perceived loss of sovereignty of which its citizens complain has come in part from the fact that the politicians of the individual state governments have been happy to haemorrhage more and more powers to Brussels that override the individual, local needs of each country. However, if all of the military, policing and judicial might of the combined EU member states was to be consolidated in Brussels – which is, of course, the eventual aim of the super-statists – then it would be the case that no individual member state would retain the ability to enforce its sovereignty over the larger entity. Hence, it was a good thing for the UK to vote to leave the EU before such a consolidation occurred. What matters for the process of decentralisation and its liberating effects, therefore, is that any legal or enforcement system must be able to give effect to the decision making authority of smaller and smaller institutions. Therefore, large, standing armies, and consolidated police forces and judicial systems run from vast buildings in the capitals of large states, such as the Pentagon in Washington DC, are the biggest fears for those of us who wish to achieve a world of liberty – and with it, a world of peace and prosperity.


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The Nature and Origin of Rights, Part Two

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


View the video version of this post.

Children and Abortion – A Follow Up

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Children and Abortion – Hard Cases for Libertarians

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

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

The Nature of the Problem of Children’s Rights

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

Rights and Obligations

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

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

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

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

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

Abortion

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

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

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

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

Children

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

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

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

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

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

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

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

Conclusion

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

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The Myth of Overpopulation

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Overpopulation, either locally or globally, is often blamed on a number of apparent problems from the shortage of particular (usually “essential”) resources all the way up to the outright poverty of entire continents. Although few governments, most notably the Chinese, have enacted any strict policies in order to control their populations (except with regards to immigration), factoids such as the allegation that, if every single human wanted to enjoy a Western lifestyle we would need something like a dozen earths, attempt to create an unwarranted degree of hysteria.

The myth of overpopulation rests on the belief that humanity is akin to some kind of cancer which, as it grows exponentially, devours a fixed or arithmetically growing pool of resources that must be shared between everyone who has been unfortunate enough to have been born. This would have been the case in a hand-to-mouth society that preceded capitalism and the division of labour. There was effectively no production and the birth of each individual person constituted merely another mouth to feed. In other words, an increase in population led to an increase in demand for consumption without any corresponding increase in production, thus putting pressure on the existing stock of resources that had to be shared by everyone. Nevertheless, when it comes to shortages of goods in local markets today we can surmise that even if there was a fixed or otherwise relatively limited pool of resources that everyone had to share we couldn’t pin the blame for shortages on such a fact. In a free society, a particular good might be very expensive but it should never be the case that we cannot find anything. As the population increases the price of resources would rise and thus choke off demand for the least valuable uses. Shortages, rather, are always the result of government price controls that try to create the illusion of abundance without the reality, decimating the current supply and obliterating any incentive to produce more. That aside, however, the blatant reality for a capitalist society marked by the division of labour is that there is not a fixed or arithmetically growing pool of wealth and resources, and that the whole purpose of such a society is to grow, exponentially, the amount of wealth that is available. Indeed, as we shall see, humanity has succeeded in this endeavour to only a fraction of its capacity.

When the first human being trod the virgin soil of the earth, he found himself in a situation of almost unrelenting poverty. Mother Nature, as anyone trapped for an extended period of time in the wilderness has discovered, is far from a kind host, providing very little (except air to breathe and fruit on wild trees) by way of resources that can be consumed immediately for very little effort. Yet all of the matter contained in every resource that we enjoy today – buildings, cars, refrigerators, televisions, computers, clothing, medicines, and so – was, give or take a little, right there at the beginning of the world’s existence. Strictly speaking, no human being has ever created anything – rather he has merely transformed matter from one thing into another. So why, if all this matter was there from the very start, weren’t these wonderful things available to our first human? The reason is, of course, that a human must apply his labour in order to change the matter available in the world into useful resources that fulfil his ends. Yet the work of one man with his unaided body alone was not sufficient to create all of the wonderful things that we enjoy today. Indeed, it might take a single human being an entire day to hunt or catch enough fish for just one meal before the process must be repeated the following day. How can this be limitation be overcome?

The first answer is quite simply the very bugbear that is complained about – an increased population. A greater number of humans can together lift and carry a far greater amount than one man alone. Several or many men building a house would accomplish the task in a far shorter time than one man alone. More importantly, however, the widening of the division of labour as the population grows ensures that production stays ahead of population growth. Additional humans constitute an additional demand for consumption – ten humans may require ten houses whereas one human would require only one. But the fact that these men are also producers means that each can now fill his day by specialising in a particular task. One man, devoid of the ability to specialise, may take a year to build one house and he would have to undertake every single activity related to the building work on his own. With ten men, however, two may specialise in lumber felling, another two in transport, some in building, and the task of one the men may be solely to produce food and other supplies for the men doing direct work on the houses. The result of this is a greater degree and concentration of knowledge and an increased perfection of technique and expertise in each task. The resulting time saving means that, whereas one man would take one year to build one house, ten men would less than one year to build ten houses. Thus the rate of house building overtakes the rate of the increase in population. We therefore see that the quantity of labour has a marked effect on the accumulation of wealth and the transformation of matter into useful economic resources, provided that a society is distinguished by capitalism and the division of labour. To further emphasise this point, it is the twin effect of the consumption demand of the additional people coupled with the fact that these people are also producers that makes an ever increasing widening of the division of labour possible. If ten houses have to be produced then it might not be possible for one man to concentrate on any single task in order to fill his day; he might have to work in installing the wiring, the plumbing and the wallpaper. If one hundred houses have to be built then he might be able to concentrate on plumbing alone. If one thousand houses are built then he might be able to specialise on plumbing just bathrooms whereas someone else works on plumbing kitchens, for instance. The ever increasing volume of demand from an increasing population therefore begats an ever increasing division of labour when that population is put to work, and with it come all the benefits of specialisation and expertise.

Second, although it is flexible, the human body is a relatively weak and feeble creature, capable of moving and lifting only a tiny amount of matter at any one time. Regardless, therefore, of the quantity of labour available we can see that fifty men carrying sacks on their back would fail to transport as many goods in as short a space of time as, say, a railway locomotive hauling some wagons. The power of labour is therefore a further limiting factor on the number of resources that can be enjoyed. This power can only be increased by accumulating ever greater amounts of capital. All such goods – machines, tools, vehicles, and so on – are, fundamentally, merely extensions of the human body that enable its labour to accomplish more than it otherwise would. A man with an axe can fell a greater a number of trees than a man whose body is unaided by this implement. For centuries, humans could not labour to extract oil from the ground and refine it into petroleum. Yet with the capital available to construct drilling apparatus, oil rigs and refineries this is no longer the case. Indeed, most direct labour today is not concerned with the production of consumption goods at all. Rather, it is devoted to the production, augmentation and improvement of capital goods. In short, it is directed towards increasing the power of labour.

What we begin to see, therefore, is that it is not necessarily the scarcity of resources burdened by an ever increasing population that is the real obstacle to the growth of wealth and economic progress; rather, it is the scarcity of labour and the power of that labour as represented by the stock of capital goods which serve to enhance it. Goods are, to be sure, the original source of scarcity. We apply our labour only because the available quantity of a given resource exists in insufficient supply relative to the ends to which it could be devoted. Yet the power of our labour is a significant compounding factor on the degree of scarcity that we must endure. My body may only have enough capability in order to fetch a few buckets of water from a nearby stream – yet more than three quarters of the globe is covered in water. It is because the power of my labour is relatively weak that most of this water is either too far away or of insufficient quality to serve me any practical end. Only be improving the power of my labour – by being able to move greater distances, lift heavier volumes and develop processes of purification – could I hope to enjoy more water.

Such a circumstance is not limited to such a clearly abundant resource such as water. The entire world, right from the depths of the core of the Earth all the way up to the stratosphere is densely packed with matter. Our labour has only ever been able to harness a mere fraction of these resources, mostly skimmed from the Earth’s crust. As time goes on however, as population increases and with it capital accumulation and the widening of the division of labour, we harness the ability to tap into more and more of these resources. Hence, mines and oil fields that were once too costly to drill are now drilled (and, indeed, are more productive than the most productive fields of yesteryear); such mines could eventually reach depths of miles rather feet; and valuable elements can now be extracted from more complex ores. There is no reason to believe that this process cannot continue. Even today, the sea contains traces of elements such as gold which, in their totality, amount to a far greater quantity than all of that ever mined from beneath the land – 20 million tons compared to 175,000 tons respectively. Yet our labour is insufficient to take advantage of this fact. Indeed the sea remains one of the greatest untapped resources available to us. Unlike private land settlement which led to a prosperous agriculture and exploitation of the land, government has pretty much closed off areas of the sea to the possibility of settlement, preventing the development of a full-fledged aquaculture and robbing us of the ability to exploit this wonderful gift of nature.

It is for this reason – the increasing power of labour – that all predictions of resource depletion as a result of overpopulation (not to mention the ridiculousness of disingenuous “facts” such as the allegation that twelve earths are required to give everyone a Western lifestyle) – have failed. In the well known Ehrlich-Simon wager, for instance, economist Julian Simon made a bet in 1980 with biologist Paul Ehrlich that the price of five metals of Ehrlich’s choosing would have declined in price ten years later – indicating increasing availability of resources rather than increasing scarcity. Simon won the bet outright, in spite of a population increase of 800 million during that decade. Other peddlers of the overpopulation thesis, such as Albert Allen Bartlett, have labelled the views presented here as “cornucopian” or “the new flat earth” – mythical, whimsical and not based on any serious scientific understanding. What these people share in common is that they simply do not account for the future economic viability of production from what are currently viewed as uneconomic resources. For the clear result is that as population has increased we have been able to apply more labour with a greater power of that labour to a greater number of the world’s resources in ways that we were not able to do before. The ultimate goal, needless to say, would be something akin to molecular engineering – the ability to transform worthless matter such as dirt, trash or even air – into valuable resources. The futuristic “replicators” on TV shows such as Star Trek can apparently conjure goods such as a fully cooked meal out of thin air; yet the science behind would not be too difficult to imagine. We have already harnessed the ability to transform matter into energy through processes such as combustion. We can envisage that one day we could do the reverse and transform energy into matter. An inedible sack of coal could end up as a fabulous meal on your dining table.

Overpopulation does, however, give the appearance of being a problem as a result of government interference. Above we noted above, additional consumption demand represented by an increasing population serves in increase wealth provided that the additional population are also producers and therefore will act so as to widen the division of labour and the accumulation of capital. Yet the actions of government serve to swell consumption while choking off production. Pressure on resources and industries therefore arises from government control of these things. Britain’s decrepit healthcare, energy and transport systems are bursting at the seams as a result of demand and increasing costs, a direct result of inefficiency combined with prices that are too low which serve to swell consumption demand in these industries. Government pays its citizens to produce babies and thus increase the population, while an increasing immigrant population today is induced not by the freedom to pursue one’s own goals and to better one’s own life for oneself through hard work and productivity, but, rather, by generous welfare states. All of this causes a rising population that contributes to consumption but very little by way of production. In other words, if you set up the economic system to make consumption as care free as possible and production as costly as it could be then the excess of consumption and a deficit of production will give the illusion of overpopulation. Government therefore begins to look on its citizens as pests and parasites, wanton consumers of precious resources that are desperately running out. Yet the problem is not with resources; rather the problem is with the ability of the government to swell the ranks of consumers and its inability to increase the power of labour, together with its incessant stifling of anyone else who tries to do so. Every additional person who is born in the world is another mouth to feed, another person who will demand the consumption of resources. Yet that person could also be a producer who will widen the division of labour and help to grow the capital stock. Government succeeds only in breeding the consumer in a man while totally destroying in him the producer.

Turning to a related aspect, the fact that whole continents, such as Africa, are mired in poverty has nothing to do with the allegation that the richer countries refuse to “share” their wealth. If the richer countries did not have their wealth, it would not mean that poorer countries would have more – the wealth simply would not have been produced, period. Indeed, whatever wealth that does exist in poor places is often the result of Western enterprise or outright gift. These places do not lack resources; rather, they lack the institutions of private property and voluntary exchange that enable capitalism and the division of labour to flourish, and with them a greater command of labour over resources. Indeed, many of these countries are proceeding down the wrong path by setting up welfare states, trade unions and Keynesian economic (mis)management overseen by democratic institutions which are, of course, the very things that are destroying the standard of living in the West. The West achieved its greatest accomplishments in a pre-democratic, pre-welfare state and pre-union age before Marxism and socialism succeeded in leading the onslaught against capitalism and private property.

What we can see, therefore, is that overpopulation is not a fundamental economic problem. It is only an apparent problem in a society that is hampered by government intervention and the stifling of private property rights, the division of labour and capital accumulation. However, even if population started to put pressure on resources when, in a capitalist society, we reached the (unlikely) point where we were regularly turning over all of the matter in existence to meet our ends – we would still conclude that this would not be a problem worthy of any serious attention. Or at the very least, it would certainly not be a problem that merited any centralised, government control. For as population increases relative to the supply of resources, the latter become more expensive. The cost of raising a child therefore itself becomes prohibitively more expense and people would need to choose between devoting ever more valuable resources to themselves or to their children. Indeed one of the first of such resources to exert this pressure may well be land, assuming we have not, by then, invented the ability to produce more of it artificially. We could, of course, build upwards and end up living in skyscrapers but people may prefer to breed less and have more land available to themselves rather than to their children. Such choices may serve to relieve, naturally, any exponential growth in population figures. Even if, though, people desired to keep on having more children it would only indicate that they prefer the company of children to enjoying more resources for themselves. There is no objective standard by which to complain about the result of such a choice. Nevertheless, even when it comes to the question of land, humanity is currently so far from this point that we hardly need to bother mentioning it, except to try and concede to the overpopulation thesis its best possible case.

The illusion of overpopulation is exacerbated today by a fundamentally antagonistic attitude from what Murray Rothbard called the “professional foes of humanity”, the environmentalist movement1. Apart from this movement’s interference in one the most crucial markets for capital accumulation – the production of energy – the fundamentals of their philosophy view the earth as inherently beautiful and sacred, and any of humanity’s attempts to exploit it as sacrilege. Such a view is radically anti-human and can only hold that the problem with the Earth is that there are too many of these stupid, dirty, polluting, and wantonly consuming human beings. Given the influence that this movement holds it is no small wonder that such thinking permeates into more mainstream views. That aside, however, we can conclude from what we have learnt here that humans need not fear increases in population. What they should fear, however, is their government turning additional people into spoon fed eaters with shackled hands – consumers who cannot produce. It is this fact that puts a very real pressure of resources. It is therefore not overpopulation that is the real problem but, rather, “over-government”.

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1Murray N Rothbard, Government and Hurricane Hugo: A Deadly Combination, Llewellyn H Rockwell Jr, (ed.), The Economics of Liberty, pp 136-40.

Utilitarian Arguments for Liberty

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

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

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

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

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

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

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

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

[…]

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

[…]

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Economic Myths #8 – Capitalism is Exploitative

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The myth that capitalism is exploitative – or rather, that capitalists, the private owners of the means of production, and entrepreneurs – exploit both workers and consumers is as old as the history of this political-economic system itself and has been a primary driving force behind the growth of the state and, indeed, of outright socialist and communist revolution. Although much watered down from those early days, the idea that there is some kind of antagonism between the capitalist “class” and the rest of us persists.

As “Austrian” economists we know, of course, that it is absolutely and undeniably true that any free and voluntary exchange, upon which capitalism and private property must rely, only takes place because each party expects to benefit from the transaction. This alone is sufficient scientific proof to dismiss any idea that capitalism exploits one party for the benefit of another. Nevertheless we should, of course, tackle directly the specific incarnations of this myth as they appear today.

The myth has its roots in the Marxian confusion of political castes with economic classes – the idea that the relationship between capitalists and workers, which is free and voluntary, was akin to that of king and subject, or landed aristocracy and peasant – relationships that were involuntary and subjected the masses to servitude. Caste systems were static and designed to keep people in their place; under conditions of free exchange, however, economic classes have a continually changing membership based upon one’s ability to serve consumers. This ability varies from person to person, of course, but nobody is legally prevented from becoming an entrepreneur and nobody, once they are a successful entrepreneur, has their wealth and status legally protected. A wealthy capitalist might find his fortune decimated when he loses this crucial ability to serve consumers and the latter turn to other suppliers for their wares; he may have to re-join the ranks of salaried employees if he is to make ends meet. On the other hand, an ordinary worker may see a gap in the market unnoticed by the current entrepreneurs of the day and set up a successful business accordingly. This does not mean say, of course, that political castes do not exist today. We can see quite clearly from bank bailouts that there are a distinct upper caste that is protected from its mistakes and is able to retain its wealth and status at the expense of the rest of us. Indeed all the similar injustices that did occur during the early history of capitalism were not owing to the capitalists’ reliance upon genuine private property and free exchange – rather, they used the power of the state to enforce their illegitimate property interests. The mercantilist corn laws, for instance, which artificially propped up the price of corn for the benefit of cereal producers are a good example from the early nineteenth century. Capitalism itself, however, does not produce these injustices.

Moving on to some more contemporary arguments, do businesses exploit the “needs” of consumers for whatever it is that the latter want? Do they withhold “vital” and “necessary” wares releasing them only at extortionate prices thinking only of their selfish greed for profits? The argument is ridiculous because all trade and exchange relies upon the desires of the trading parties – whether it is for food, housing, cars, computers, or trips to the cinema. The entrepreneurs in business exist to fulfil and satisfy, not exploit these needs. If they are able to charge high prices it is only because the supply, relative to demand, is low and has to be rationed to those who value the goods the most. This argument regarding exploitation usually surfaces today in one of two situations. The first is during sudden supply shocks or demand spikes that send prices soaring and allows suppliers to book large profits as they obviously paid for the inputs at much lower, wholesale prices. As these usually occur during times of emergency or crisis, aren’t the businesses exploiting the dire need of the consumers for such staples as water, canned food and fuel? Such an argument ignores the fact that it is not the businesses driving the demand – it is the other people who are willing to pay more to get their hands on the suddenly scarce items. The only options are to allow other entrants into the marketplace to bring more resources into the production of scarce goods and lower their price, which would satisfy everyone with more supply of those goods that are most needed in these crisis situations; or, to fix the prices of the wares below their market clearing level which would lead to guaranteed shortages. Needless to say, government always opts for the latter. The second situation that attracts criticism is when the entrepreneur is in the business of providing something “essential” such as energy or healthcare. Yet these businesses are almost always cripplingly regulated and interfered with by government that it is impossible to define them as anything approaching free markets. Britain’s Energy market is a case in point. Apart from the vast government bureaucracy that oversees the industry, idiosyncratic interferences such as the announcement by the leader of the opposition Labour Party, Ed Miliband, that his government would freeze energy prices if his party wins the 2015 general election also take their toll upon consumers. Firms are not passing on the reduction of wholesale Energy prices to consumers and are booking profits now for fear that they will be locked into furnishing energy at low tariffs in a period when wholesale prices are rising, should Miliband make good his threat. In contrast if you look to any industry that government tends to leave alone you do not find the same criticisms hurled at the dominant suppliers. Up until now we have seen that supermarkets, although subjected to food standards regulations that no doubt have raised prices, have benefitted from relatively less government interference and, apart from a few murmurings from food purists and local activists, inexpensive food has ensured that they have never been a serious political issue. However, now that food prices are starting to rise can we expect government to start poking its nose increasingly into the food industry and blaming the resulting shortages and disarray on the “exploitation” of the big supermarkets? Furthermore, given that trade is always a two-way process we could also say that the consumers “exploit” the need of businesses for money. These entities have suppliers and employees to pay and they are often desperate to get their hands on your cash – if someone else offers a lower price they could be left high and dry by your decision to shop elsewhere, threatening the employment and livelihoods of all of those people that work in the business you shun simply because you have the guile to want to pay less! It is partly for that reason that the supply curve for consumer goods is generally vertical, with merchants selling goods for any price they can get simply to shift them and have at least some cash to meet their future outgoings.

In a genuine free market businesses can never exploit anyone or hold anyone to ransom. A consumer would have the power to take his custom elsewhere if the business failed to meet his needs at an agreeable price. Although businesses as a whole set prices for consumer products and wages, no one individual business can do so and each one must be prepared to sell goods for, at most, as much as the next business, and to pay wages at least as high. These boundaries can be crippling if the selling prices are lower or insubstantially higher than the prices the business must pay out. Businesses, unprotected by government privilege, therefore have to be on their toes constantly in case someone comes along with a better offer. The beneficiary of this process is the consumer-employee, who always knows he is paying the lowest price for what he buys and receives the highest wage for his work that can ever be paid.

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