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

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

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

Legal Persons and Self-Ownership

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

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

Original Appropriation of Goods

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

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

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

Conclusion

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


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

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

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

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

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

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

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

What is a Law?

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

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

Law and Enforceability

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

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

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

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

Legal Systems

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

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

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

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

Law and Objectivity

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

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

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

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

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

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

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

A:       “Competing law courts”

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

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

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

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

Legislation or Judge Made Law?

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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