Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations

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In this final part of our survey of libertarian law and legal systems, we will cover some other areas of legal liability and some miscellaneous considerations before being in the position of sketching a final map of libertarian law.

The Standard and Burden of Proof

In contemporary legal systems the requisite standard of proof differs depending upon the type of action. The imposition of criminal sanction requires proof to be established beyond a reasonable doubt whereas civil liability requires the same to be established only by the balance of probabilities. The reason for this, presumably, is that criminal sanction is viewed as being a greater incursion of one’s liberty than civil remedies such as furnishing compensation. Not only could one be locked up in prison but one is usually lumbered with a criminal record so that it is impossible to disassociate oneself from the illegal act for at least a period of time. Furthermore, the traditional replacement of the victim by the state in the prosecutorial process of criminal trials is, no doubt, deemed to require stricter due process to protect the individual from persecution by the government.

Much of this is irrelevant from a libertarian point of view. Although we have not discussed in detail the different remedies that flow from criminal liability on the one hand and civil liability on the other, the enforcement of all laws in a libertarian society is an incursion against an individual’s liberty. Taking someone’s money in order to furnish compensation for a tort is as much an invasion of that individual’s person and property as locking him away for a crime. Low standards of proof would result in legal remedies themselves becoming de facto breaches of the non-aggression principle. Therefore, in order to legitimatise the proposed legal remedy it is likely that only the strictest standards of proof will be accepted by a libertarian legal system – even for tortious as opposed to criminal liability. In other words, the fact of physical invasion, the extent of the aggression and the corresponding intent of the defendant must all be established beyond a reasonable doubt, or some equivalent that the libertarian courts devise.

The initial burden of proof, properly, rests on the plaintiff and not upon the defendant, just as it does in our contemporary legal systems. It is up to the plaintiff to establish a prima facie case by proving the presence of aggressive behaviour – rather than for the defendant to establish the more difficult proof of its absence. It is the plaintiff who is alleging the existence of a conflict arising from scarcity; the defendant, for all he knows, may be just going about his daily life unaware of it. It is therefore up to the plaintiff to demonstrate the substance of that conflict. Although the old adage “innocent until proven guilty” is of greater relevance when one is faced with the imposition of legal liability by the state, it applies equally in a libertarian world. The alternative, where the plaintiff could pursue a case without having to bear any burden of proving his case and thus gain “compensation” merely on his say so would allow the pursuit and sustenance of all manner of frivolous lawsuits, transforming the law from a bulwark of justice into a vehicle for wealth redistribution. Upon the establishment of a prima facie case by the plaintiff the burden may shift to the defendant and it is then up to the latter to furnish defences or mitigating circumstances in order to either reduce his liability or absolve him completely.

Vicarious Liability

A rule that libertarian courts will almost certainly impose is that the liability should be of the true aggressor only and that any form of “vicarious liability” is unwarranted. This consideration normally arises when employees of an employer carry out an invasive act during their working day. For example, a workman who knocks a tool off of scaffolding striking a pedestrian below; or a lorry driver who runs over an old lady. Faced with a lone plaintiff who has borne an enormous loss the urge to make “the deep pockets” pay has often proved irresistible to courts. Holding employers vicariously liable for the acts of their employees, or “inflating” the terms of insurance contracts to make the insurer cough up, often ensures a greater chance of recovery for the victim rather than pursuing the employee or individual defendant who, alone, may possess few or no assets worthy of furnishing compensation.

There will be occasions when employers will be liable for their operations when those operations result in a tort; for example when employees are only following a procedure specified by their employer and the employee did not know any better – in other words, in cases where the employee is acting as agent for the employer. Employers are likely to lay down specific procedures and safety guidelines for their employees, the breach of which will demonstrate conclusively that the employee was at fault, although the greater hope of the employer will be to avoid any accident in the first place; a tortious situation may not generate any liability for the employer but it may nevertheless result in embarrassment and brand impairment when one’s company name is involved. Employers are also likely to specify in the contract of employment the situations in which he will be liable and those in which the employee will be liable so that the employee is highly aware of the situations in which he is operating as an agent for his employer and when he is operating as an individual. Generally, however, what will make the difference is where there is an operative intervening act of will by the employee that causes the aggressive act – an intervening act that diverts him from the normal course of employment and is a fresh act not commanded by his employer. If there is such an intervention by the employee then he is liable. A workman who drives carelessly in his employer’s van between jobs and strikes a pedestrian would be liable, alone, for that invasive act. It was he whose will directed the van into the path of the pedestrian. Simply because he was acting during his working day and with his employer’s property does not invoke any liability on the part of the employer. Applying a reductio ad absurdum to the contrary, would we permit an employee to pursue a criminal rampage and then throw the employer in jail simply because the employee was wearing his work clothes? If not then neither should we hold employers responsible for the less culpable acts of their employees. On the other hand, if the van had faulty brakes because the employer had chosen not to service the van, then the employer would be liable for any accident caused by this fact.

Personal Rights, Property Rights and Trusts

Roman Law made a distinction between the types of right or action available to a plaintiff – the rights in personam and rights in rem. This has survived into modern English law as being personal rights on the one hand and proprietary rights on the other. A personal right exists when an individual is owed a right by a specific person – i.e. the obligation by that specific person to pay a sum of money. The legal noose that you hold is round the neck of the individual and is not attached to any particular sum of money that the individual might pay over. A proprietary right, on the other hand, is over a specific piece of property regardless of its current possessor – your right is attached to that property and follows that property wherever it goes.

With libertarian law and its focus on property we must be, in the first instance, suspicious of this distinction. In the first place aren’t all rights in a libertarian world property rights and aren’t all people demanding the enforcement of their property rights? Secondly, don’t all rights and obligations exist between individuals and not between individuals and things?

The confusion stems from the way in which contemporary legal systems, possessing no rationale as to the concept of property, understand the meaning of “title”. The reason why rights and ownership claims over property arise is to avoid conflicts arising from scarcity – conflicts which take their substance as two or more people wishing to take ultimate control and possession of the property. Any one person at any time will have physical control and possession of the property and it is this person who has the de facto title to that property – what we might, for argument’s sake, term the possessive title. It is within his actual, physical power to dispose of that property as he wishes. However, when we say in a libertarian sense, that a person has “title” to property we mean this normatively – that the individual should have – i.e. is entitled to – possession and control of that property but may not necessarily have it at this moment in time. It is by comparing the possessive and normative titles – who does and who should have control and possession respectively – that we can determine who is violating the rights of whom, if at all. A creditor, for example, has a normative title to a sum of money on its due date; the debtor has possessive title. The debtor is required to relinquish possessive title to the creditor. If he does not do so then he is in violating the creditor’s normative title and may be subject to legal sanction.

In a libertarian sense, therefore, a person may have a normative title to property but this does not necessarily mean that he will be entitled to a proprietary remedy as understood by contemporary legal systems. In other words, he will not necessarily have a noose around a specific, earmarked piece of property in the debtor’s possession and will, instead, only have what is termed a “personal right”. After all, strict, proprietary rights may simply be unavailable. A defaulting debtor, for example, may owe money to numerous creditors yet have insufficient funds to pay all of them in full. The creditors cannot enjoy a proprietary title as the funds simply do not exist for them to have title over. All they have is the normative, legal force of the debtor’s obligation to transfer to them possessive title of a sum of money. Indeed, at least when it comes to the enforcement of debts to be paid in money, the whole distinction only really becomes relevant for practical purposes at the point of litigation when one is dealing with an insolvent debtor. Although we are not examining specifically bankruptcy laws in a libertarian world, we must assume that something akin to limited liability partnerships or corporations may exist and there will exist occasions when multiple creditors have to share between them an insufficient pool of assets in the debtor’s possession in order to extinguish as much of the debt as possible. Where, in such an instance, a creditor can only establish the equivalent of a personal right – i.e. no right over a particular set of the debtors’ assets – then he must take his place amongst all the other creditors, sharing out the assets that remain and must be content to write off the unfulfilled portion of the debt. Where, however, a creditor can establish a proprietary right, it enables him to ring fence that particular good in the debtor’s possession and prevent it from being parcelled out amongst the other creditors. One therefore leapfrogs ahead of everyone else to whom the debtor owes obligations. Such a creditor with a proprietary title is said to be a secured creditor. There is therefore a strong incentive for a creditor to attempt to establish a proprietary title over a specific piece of property in the debtor’s possession as it almost guarantees that his debt will be paid in full.

We might say, therefore, that in keeping with the libertarian understanding of property rights and titles, the distinction will be between a personal action on the one hand and a proprietary action on the other; the former being the suing of a specific person for a thing; the latter being the suing for a specific thing of a person. How will libertarian legal systems handle these types of action and in which cases will it recognise a proprietary remedy on the one hand a less exalted personal remedy on the other? What form will a proprietary remedy take?

Before we proceed with this discussion it is appropriate here to discuss the trust mechanism. A trust is a specific type of property arrangement. It is where the possessive title is held by one individual (“the trustee”) whereas the beneficial title is held by another (“the beneficiary”). The latter’s title is not a mere personal right over the trustee; rather, it is a full, proprietary title over the assets that form the subject matter of the trust and these assets are segregated from the trustee’s personal assets so that in the event of the trustee’s insolvency his creditors may not touch the trust property. A trust is not an independent causative event of legal liability such as a tort or contract; rather, it is the property arrangement that results from a causative event. For example, a contract may create an “express trust” in order for a trustee to manage property on behalf beneficiaries – for example, an investment trust or a charitable trust. On the other hand, courts may impose trusts – referred to as “constructive trusts” or the more bizarre “resulting trusts” – in response to wrongs or unjust enrichment. Where, for example, an individual aggresses against a person’s property, a court might hold that the aggressed party retains a beneficial title over that property and the property is therefore ring-fenced from the aggressor’s assets1.

It is possible, indeed likely, that the trust arrangement will remain in a libertarian legal system, both as purposeful arrangements in order to dispose of property in a prescribed way, or as the result of an outcome of litigation. Our interest here is with the latter – when and where are libertarian courts likely to award a proprietary remedy to the plaintiff and when will he gain a mere personal right? In order to discuss this with clarity, we ought to first suggest some terminology for the different types of titles that can exist over a piece of property:

  • Possessive Title – held by the person with de facto control and/or possession of the property;
  • Beneficial Title – a proprietary title that ring fences the property securely from the assets of the holder of the possessive title; this title is both de facto and normative and will be held only by the individual whom the courts deem should possess it;
  • Personal Title – a title that enables a person to use legal force to demand possessive title from the holder of the latter; the title is normative only; no property in the debtor’s possession is ring-fenced2.

Under pure libertarian theory, no aggressive act would be sufficient to transfer any title over property whatsoever to the aggressor and full proprietary title would remain in the hands of the plaintiff. However, as we keep stressing throughout this series, law and legal systems have to deal with the practicality of legal enforcement and recovery, the greatest consideration of which is cost.  What follows is likely to be the most sensible approach of libertarian legal systems to balance libertarianism’s approach to property on the one hand with practical considerations on the other.

Where the good that is the object of aggressive behaviour is non-fungible and exists as an independent, stand-alone, ring-fenced entity then the courts will award the plaintiff with a beneficial title to that property. For example, if A delivers a television set to B in advance of the payment of £100 for the set to which B agreed, possessive title of the television set passes to B. In the event of B’s default the court is likely to recognise A’s beneficial title over the television set. A’s right, therefore, extends over the television set and does not follow, for ever and a day, the particular person who presently has possessive title over the television set but may not do so in the future. The primary good that will usually subject to proprietary remedies will, of course, be land. Land is non-fungible, ring-fenced, easily identifiable and, also, immoveable – making the awarding of a proprietary remedy to the plaintiff the most desired and the most practical solution.

Where, however, the good is fungible and mixed with other, equally fungible units of the good so that it is neither independent nor ring-fenced then the court is likely to award the plaintiff only a personal title to that property – a right that follows the specific debtor and not the actual physical matter that is subject to dispute. The most common form of fungible good is, of course, money. If B pays A £100 in advance for delivery of a television set, that money is transferred into A’s bank account and is mixed with all of his other monetary assets. These will be used to pay other creditors and suppliers in the meantime before B’s delivery may become due. There is absolutely no way that, in the event of A’s default, it could be said that any specific quantity of notes, ounces of gold or whatever that B transferred to A were his, much less so if A has transferred a portion of those funds to pay other suppliers. The contrary would result in the absurd position where every single unit of currency would be tagged and tracked in and out of A’s possession, into his bank account, and out to third parties, then onto other parties and so. Especially as a period of time usually elapses before a legal action is pursued, one might have to go to the ends of the earth to pursue one’s actual money if it had been subject to hundreds of transfers in the meantime. Rather, the court is likely to hold simply that B possesses a personal title to £100 of A’s and it remains A’s obligation to pay that money across. A simple test of fungiblity is to ask whether the plaintiff would be satisfied with payment of any unit of currency or ounce of gold etc., or whether he does in fact demand the very units or ounces that the defendant took from him. If you are owed £10 you don’t necessarily want the very note that was taken from you – you just want any £10 note, or two £5 notes, or ten £1 coins, or whatever.

Gradations between these two extremes – non-fungible, ring-fenced goods on the one hand, and fungible, mixed goods on the other – will have to be dealt with on a case-by-case basis. For example, one television set may be like any other that is manufactured just like it and a person owed a television set may be happy to take any one. These television sets may be pooled in a warehouse and not yet allocated to specific customers; indeed, there might not even have been enough television sets produced to fulfil all of the orders. In such cases only personal titles may be awarded to the plaintiff. On the other hand, money can be easily ring-fenced by its deposit into a segregated account; other fungible goods such as shares may be held on trust by a manager for numerous investors, their proportionate share of the property remaining constant depending upon their contribution to the fund. These are the sorts of considerations that courts will be faced with when determining whether to award personal or proprietary remedies as the result of litigation.

Concurrent Liability

It is sometimes the case in contemporary legal systems that the same facts can give grounds for a plaintiff to bring an action under different areas of the law. For example, a plaintiff may be able to bring an action under contract or under tort. This possibility stems, once more, from the divorce of contemporary legal systems from any rationale as to precisely what it is that generates legal liability. Under libertarian principles it is only a physical invasion of the person or property of another that gives grounds for liability. Nothing else will suffice. Under libertarian law, a “contract” is not, strictly speaking, a causative event of legal liability. Rather, it is an area of the law that gives a body of rules for examining the property relations that exist between the parties. Once these relations are established, the only question that determines whether there is legal liability is if there is a physical invasion of property under those arrangements. The courts therefore face two questions when it comes to the determination of the liability of the defendant:

1. What are the property arrangements between the parties?

2. Having established these property arrangements, did the defendant commit an act of aggression against the property of the plaintiff?

If the case is one of a simple, unilateral wrong then the first question can usually be overlooked. It is assumed that whatever each party brought to the situation belonged to him. If A punches B then it is clear that the body of A belongs to A and the body of B belongs to B, barring some special circumstance. On the contrary, where A is trying to take property from B that B previously stole from A, A will adduce evidence that the property was rightfully his and the question of what the correct property arrangements between the parties are will have to be examined.

One particular area of the law where this question is quite important is product liability – specifically, products that turn out to be dangerous and cause injury, as opposed to products that merely do not work or are not “fit for purpose”. In these cases, there is a contract between the parties for the transfer of the product. In the famous case of Donoghue v Stevenson, for example, the plaintiff purchased a ginger beer bottle from a bar. The bottle of ginger beer, unbeknownst to the plaintiff, contained the remains of a rotting snail. The plaintiff drank the beer and fell ill as a result of its contents and sued the defendant in tort. Other examples include the notorious “hot coffee” cases – where plaintiffs have purchased a cup of coffee and have then sued the vendor for the medical costs when they have spilt it on themselves.

At first blush, these cases seem a little mysterious to libertarians. In Donoghue, hadn’t the plaintiff purchased the bottle of ginger beer and did she not imbibe its contents wilfully? How is it possible, at the point she was injured, for there to be any aggression on the part of the defendant? Indeed, it seems ironic that the seminal case in English tort law is one in which the plaintiff seems to have injured herself with her own property3. The correct analysis of the case, however, is to examine the contractual relations between the parties in order to determine the property relations first. The contract was for the transfer of a bottle of ginger beer. It was not for a bottle of ginger beer containing a snail. Title to the ginger beer bottle containing the snail never passed and thus the injuries resulting to the plaintiff were caused by the invasive action of the defendant placing the snail in the ginger beer bottle. Hence the plaintiff could properly sue the defendant for an aggression. The case would have been different had the contract specified that all defects in the product were the responsibility of the purchaser or if the contract had been for “the object in front of the parties” and not for an object of any particular description. In such an instance, full title to the ginger beer bottle containing the snail would have passed to the plaintiff and she would have had no action as the injury resulted from her own, subsequent actions. While this is theoretically possible, of course, most vendors will be keen to specify the compensatory remedies available in the contract and the discipline of the marketplace is likely to prevent them from passing on liability for their errors wholly onto the shoulders of their customers. In principle, however, it demonstrates the importance of determining the property arrangements between the parties prior to any investigation as to whether there was any aggressive action. Similarly, in the “hot coffee” cases, the action turned on whether the coffee served was too hot and was, therefore, a markedly different product from the one which was contracted for. If it was, then the defendant’s act of “overheating” the coffee was an aggressive act and the plaintiff would have a legal remedy. If, on the other hand, it wasn’t and the coffee was served as either the contract (or the customary and conventional definition of “coffee”) specified then the plaintiff would have no legal recourse.

Unjust Enrichment

It is with this understanding that we can proceed to examine the area of the law known as unjust enrichment. Usually referred to as the law of restitution, unjust enrichment is, like contract, not an independent causative event of legal liability but, rather another example of a type of property arrangement between the parties. It is appears in every situation that is akin to the mistaken payment of a non-existent debt. A owes B £500; he pays, in error, £1000 so that B has been “unjustly enriched” by £500. B is required to transfer the overpayment back to A.

For a long time in our contemporary legal systems discussion of unjust enrichment was buried in that of other areas of law, mostly contract. It is not difficult to see why as most cases of mistaken transfer will occur when there are pre-existing relationships between the parties. Indeed, a simple payment made in error or an overpayment is only the most basic case. Others include mistakes regarding the property that is the subject of a contract – i.e. A thinks he is purchasing a car and pays B for a car when B thinks he is selling a van and believes he is receiving money for a van.

Once again, lacking any rationale as to what should constitute the triggering causal event of legal liability, case law and academic writing has been divided between whether the plaintiff’s case is actionable because of some “unjust factor” on the one hand – that it would, in some way, be “unjust” for the defendant to retain the property – or because the mistaken transfer had an “absence of basis” on the other. Libertarian law should be able to transcend this debate. Our first task is to examine precisely which property arrangements arise under the fact of the mistaken payment; we then have to see if the defendant aggressed against property that belonged to the plaintiff. In all cases of unjust enrichment – whatever the facts from which the claim arises – there is, initially, no aggression. The payment is made freely and voluntarily by the plaintiff – he sends it into the defendant’s possession and voluntarily transfers to him possessive title of the property. The defendant in no way initiates any action that invades the person or property of the plaintiff. It is likely the courts will recognise that the normative title to the property remains with the plaintiff from the point that the “mistaken” transfer was made. It is not the defendant’s property – the fact of “mistake” itself reveals that the plaintiff made no transfer of the normative title to the property upon the defendant4.

Whether any situation akin to a “mistake” occurred will have to be judged from examining the actions and arrangements between the parties. Let us examine the simplest of cases – where the plaintiff alleges that there was a simple error of overpayment by him to the defendant. In order to determine the fact of mistake, the court would have to ask whether there is a valid contract for the transfer of the sum; or whether it was a gift or donation. For example, if you are presented with an invoice from your phone company for £50 and you pay £100 this would, in most cases indicate that the overpaid sum was mistaken, unless the telephone company could adduce evidence that the plaintiff was making an advance payment for future services or (more unlikely) a gift or a donation.

Having established that the property still rightfully belongs to the plaintiff and not to the defendant, we then have to determine if the defendant aggressed against that property. The initial act of transfer by the plaintiff will not be, as we have said, an act of aggression by the defendant. However, anything else that the defendant does with that property – i.e. a fresh act resulting from the intervention of the defendant’s will – is, under our standard of strict liability for aggression, an invasion of the person or property of the plaintiff and the defendant is prima facie liable. If this occurs after the defendant realised the mistake then the case is straightforward – it is a clear and wanton act of aggression against the person or property of another and the case simply proceeds as an ordinary case of tort or crime. The difficulty, however, is what the courts should do if the defendant should make such an intervention of will before he realises that the transfer was mistaken. He could trade it, alter it, destroy it or otherwise dispose of it entirely innocently and only because the plaintiff voluntarily transferred the property to him.

It is likely that the courts, although sustaining the prima facie liability of the defendant based upon strict liability, will permit the defendant to invoke the mistake of the plaintiff in transferring the sum as a defence against all acts of aggression that occur between the point of transfer and between the point that the defendant realises the mistake. The precise latter point will need to be determined by the courts and the burden will fall on the plaintiff to adduce evidence of precisely when the defendant knew that receipt of the transfer was mistaken. This gives a clear incentive for plaintiffs to communicate the fact of mistake to defendants in a timely manner as the communication itself will bring forward the point that the defendant is made aware of it. Alternatively, if the defendant is a business, producing a statement of account would likely suffice as evidence of overpayment or mistaken payment in the simplest cases5.

Wherever the point at which the defendant becomes aware of the mistake, after this point he may not commit any act of aggression against the mistakenly transferred property and is required to return it to the plaintiff. For any acts before this point he will be protected.

How can we justify this defence? The first and simplest answer is the plaintiff’s material contribution to the act of aggression by sending his property into the possession of the defendant. It seems unjust to hold the defendant liable when he, the defendant, has had the property of the plaintiff forced upon him. Indeed, an alternative analysis might even hold that the unjust enrichment is itself an act of aggression on the part of the plaintiff. This can be contrasted with the situation where the defendant commits an act of aggression against the plaintiff’s property and each party is, similarly, unaware of it until a later date (such as if the defendant causes the overpayment by accidentally making a charge to the plaintiff’s credit card, or collects the sum by Direct Debit from the plaintiff’s bank account). Here the lack of awareness will not absolve the defendant as the act of aggression was wholly of his making. Second, consider the situation where the mistake is, in fact, never realised by the parties. What happens then? Legal rights and obligations arise only when individual parties recognise a conflict arising from scarcity. Absent any realisation of a conflict then there is simply no substance for legal rights and responsibilities. During the point between the transfer and the realisation of the mistake, each of the parties believes that everything is sound and nothing untoward has occurred; both parties go about their daily lives as if nothing had happened. In short, at this point, there simply is no conflict. Indeed, both may go forward from that point in total ignorance that the mistake had ever occurred and it will go with them to the grave. Both parties will proceed with their lives unmolested by the law while they remain in this state. The fact that the mistake becomes realised at a later date does not change the ex-ante­ position between the parties. Once again we can compare and contrast acts of physical invasion of which the parties are not immediately aware – particularly noise, light, odours and so on. Whether or not these are aggressive depends upon the plaintiff enforcing his rights. If he does not so within a certain period of time then it demonstrates that there was no genuine conflict and the courts may grant an easement title to the defendant to continue the “invasive” act. Similar considerations may apply here. If the plaintiff does not take steps to enforce his rights and demonstrate his realisation of the mistake then it proves that there is no substance to the conflict and after that time full title to the mistakenly paid property may pass to the defendant. Third and finally, we must also remember the libertarian principle that each individual person is responsible  for all of those acts which he initiates. This includes ensuring that it does not aggress against any other individual but it also means that you are responsible for your own mistakes with your property. Whatever you do, whether you produce it, consume it, destroy it, trade it, you cannot compel others to pay you for losses arising from any mistaken appreciation of carrying out these actions. If you cannot hold anyone responsible for your unilateral mistakes with your property then it follows that you should not, as a plaintiff, hold them responsible when the mistake is bilateral and wholly of your origination. Indeed, “mistake” itself is a very broad category and can involve anything from hitting an incorrect digit on a keyboard all the way to having a complete misunderstanding about the market environment for a particular business venture. Your losses in both instances are “mistakes” yet we would never suggest that a loss making businessman is not responsible for his losses; in turn, he should also be responsible when he makes an error when transferring a payment. Such mistakes are also a natural part of life – not only through absent-mindedness, but misinformation, misunderstanding and also where payments are initiated before a change in circumstances becomes apparent. And as we said in our discussion on liability for wrongs, the responsibility for these events remains with the property owner. In short, if you throw your sheep to the wolves, do not automatically expect that you will be able to get it back. At the very least we can say that this defence is consistent with the approaches towards aggression we have discussed previously.

What is the extent of this defence? Much of this question is likely to depend on whether the courts vest in the plaintiff a proprietary title over the mistakenly transferred property or merely a personal one. If it is a personal one – as in the case of fungible, unsegregated goods such as money – the defendant is likely to be liable to make the repayment even if he transferred the very notes paid over to him in error out of his possession. The strongest likely defence in this instance will be that of “change of position” – where the defendant can adduce evidence that he innocently changed his financial plans as a result of the mistaken payment, assuming that he had more funds than he thought he did. This has occurred in cases where banks have mistakenly paid sums into the wrong bank account. Genuinely assuming that they had more money than they thought, the recipients proceeded to increase their spending. Should such a change of plans be evidenced then the banks should forfeit the loss. On the other hand, if the title is proprietary then the plaintiff’s claim follows the particular piece of transferred property. Anything that the defendant does to the property before the mistake is realised the plaintiff will have to live with – if this includes alteration or degradation then he will receive it back in its altered and degraded state. If it is transferred out of the defendant’s hands to a bona fide third party the plaintiff may have to forfeit the property entirely.

Finally we can compare and contrast the situation of a mistaken payment with that of the transfer of sums of money in advance for the performance of a service or in exchange for another good. Here, a normative title over the money remains in the hands of the transferor at all times. Although the act of aggression only occurs once the defendant fails to perform his half of the bargain, this does not mean he can  invoke any defence if he trades or otherwise disposes of the money before that time. For here, the parties are aware of the property distribution between themselves and will very much be aware of a conflict should the defendant abscond with the money. On the other hand, if we have the case of A paying in money in advance mistakenly believing that the contract is for a car whereas B believes that the contract is for a van (and B delivers the van) the mistake of A’s will allow B to assert a defence against A’s claim for his money back if he dealt with it before the mistake was realised.

We must conclude this section by restating that all of this may be wrong and may be courts will hold defendants liable for knowing what they are receiving. Indeed in many cases the mistake may be mutual rather than wholly one-sided. However, it seems that, at least in the classic, core case of unjust enrichment the approach outlined here is the most consistent with libertarian principles. Finally, of course, parties may choose to vary their respective liability for an unjust enrichment by contract – for example if an existing customer makes an overpayment, the contract may specify a procedure for returning these funds or for allocating them towards future services.

Restrictive Transfers and Perpetuities

One further interesting topic is how restrictive transfers of property would be handled by a libertarian legal system. A restrictive transfer is any transfer that does not vest ownership of the property absolutely in the transferee. For example, A transfers the ownership of a car to B providing that B uses it only to travel to or from work; C transfers to D a house provided that he lets Mrs E, an elderly widow, have residence for life; F transfers a strip of land to G provided that G permits a right of way to the owner of the neighbouring land and the latter’s successors in title. All of these cases vest in someone other than the owner a residual title to the property that may be enforced under the terms of the transfer. Usually the transferee will have paid a lower purchase price than he would have done for outright title – after all, you would not pay the same price for a house with a restrictive covenant than you would for a house that confers upon you the right to do whatever you liked6. Hence he is not paying for a full transfer of title. In simple cases of restriction such as the doing or not doing something on a property then this residual title will remain with the transferor. Should the transferee proceed to carry out the prohibited act he has now violated the transferor’s residual title and the latter may sue. In cases where the contract confers a benefit upon a third party – e.g. the widow who may stay in residence for life or the neighbouring property that is granted a right of way – it is the third party who holds the title.

This brings us to the question of wills, bequests and trusts that are set up in apparent perpetuity for the benefit of certain beneficiaries or to carry out certain purposes. For example, a person may decide to bequeath all of his wealth to his eldest son, provided that the latter bequeaths it to his eldest son and then to the latter’s eldest son and so on forever. Or a person may stipulate that he will transfer land provided that neither the transferee nor his successors in title ever build on the land for the rest of eternity, even after the transferor is long dead. In all of these cases can the so-called “dead hand” of the settlor command rights and obligations over property for the remainder of time? Our contemporary legal systems have invoked perpetuity rules in order to prevent property from being tied up unreasonably into the distant future. Usually the interests bequeathed by all such  transfers must vest absolutely in the beneficiaries within a period of “lives in being” plus twenty-one years. Hence, inserted into bequests are bizarre “Victoria” or “Kennedy” clauses stipulating that the directions for the property will remain for as long as the lifespan of the youngest living descendant of Queen Victoria (or of Joseph P Kennedy) plus a period of twenty-one years. After that time any specified interest in the bequest is invalid and the property vests absolutely in the last, valid beneficiary.

Libertarian law has no need for such an absurd and artificial rule. All rights and obligations belong to living, individual human beings and the courts will not enforce a stipulation laid down long ago by a deceased person. How then are directions stipulated in wills or bequests enforced beyond the lifetime of the settlor? The answer, once again, is to look to the residual title of the transferor. When he dies, this title will be inherited by his heirs. The latter then have the choice to continue to enforce the restriction or to relinquish it. For example, if a person bequeaths money to a hospital for the sole purpose of providing care to the terminally ill, the restriction vests in the transferor a residual title to enforce that restriction. While the transferor is still alive he is likely to enforce it, of course. When he dies, however, that title passes to his heir who may decide to continue to enforce it or may negotiate with the hospital for its relinquishment. Should he choose to continue it – perhaps out of respect for the original transferor – it will then pass to his heirs, and so on. With a property restriction that, say, confers a right of way upon the owner of a neighbouring property and his successors in title, exactly the same kind of situation occurs. If the succeeding beneficiaries of the right of way down the generations wish to continue to benefit then they will proceed to enforce the right. If not then then they will arrange for its relinquishment (or, more likely, the beneficiary will sell the right to the owner of the burdened property and the latter will then own the property outright). As long as the heirs continue to enforce the residual title then the desire to use that property in the manner stipulated by the original transferor is not the desire of some long dead settlor but is, rather, that of real, living human beings. There is, therefore, no distinct problem of perpetuities in a libertarian legal order. In any case, as time moves on certain restrictions may become forgotten and unexercised. Succeeding property owners of land that benefits from a right of way over adjoining land may, after a few generations, be completely unaware of that right of way and will not use it. Indeed the owner of the burdened property may, in the same state of ignorance, block access to the right of way with no alarm from its supposed beneficiaries. In this case, the courts may take this as evidence of abandonment of the title and full, beneficial use of the restricted property reverts to its owner. This is a similar approach to what courts are likely to do when determining whether there has been an aggressive action against property in the first place – if the right was not exercised for a period of time then it demonstrates that the actors have no conflict in their minds and the defendant’s act, while physical in nature, generated no substantive invasion of rights. Hence we should also not have any problem of people “digging up” ancient documents, discovering long forgotten titles and then suddenly demanding their enforcement.

Finally, we must also remember the libertarian devotion to the market as opposed to the force of law that is the way of the statist. If people wish to donate their wealth to good causes or for specific purposes after they die and they wish this to be for at least a significant period in the future then suppliers of this need will be hot on their tail. Companies could offer to receive an individual’s money upon that person’s death and devote it to whichever purpose that individual wished. Legally, title to the property vests in the company absolutely but the discipline of the marketplace will ensure that they do not misuse it – if they do, people will, in the future, turn to more reliable competitors to whom to make their bequests and the abusive company will go bankrupt.

A Final Map of Libertarian Law

Having concluded our survey of causative events of legal liability in a libertarian legal system, we are now in a position to sketch an outline of the map of libertarian law and it categories.

There will be specific areas of the law devoted to determining what the property rights between the parties are, based upon libertarian principles. These are, namely:

  • The law of self-ownership;
  • The law of original appropriation;
  • The law of contract;
  • The law of unjust enrichment;

We might also include in this list the law of trusts although, as we indicated above, a trust is a property mechanism that results from various events and does not necessarily sit neatly in the above list. There might also be specific areas of the law devoted to incorporated associations such as companies.

All of these categories of law that determine the property distribution between the parties then feed into the central area of law which is the law of wrongs (torts and crimes). The previous categories having established what the property rights are, this area of the law determines whether there was an aggression against that property as we outlined in part four. Notice that there is no separate procedure for criminal and tortious acts as there is in our contemporary legal systems – the investigation of aggression is a unified whole and proceeds in one direction; the distinction between crime and tort is only one question to be examined in this process.

These areas mark the extent of that which we have investigated thus far. There will also be specific areas of the law that determine appropriate remedies for an aggression against property, part of which, in addition to theories of compensation and restitution, will have to examine libertarian theories of punishment and the viability of introducing punishment as a response to an invasion against property.

We can conclude by noting that nothing in this brief sketch includes any mention of “public law” or laws that apply to state, government, administrative or statutory bodies. All law in a libertarian society is “private law”; all legal rights and obligations exist between individual human beings and all of this law rests upon the same principles that are binding upon everyone regardless of their societal status and function. No individual human will be either privileged or persecuted by a libertarian legal system.

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1However, the precise causative events that give rise to some of these trusts appear relatively unclear in the case law, probably because trusts were developed in Equity which was based on much more vague and loose principles than the common law. “Unconscionable behaviour” seems to be a favourite phrase that courts use to justify the imposition of a constructive trust.

2None of this terminology need necessarily be used in a libertarian legal system – we are using it here simply for clarity.

3Actually, the bottle was not purchased by the plaintiff but by her friend who was accompanying her; it is also the case that the plaintiff sued the manufacturer of the bottle, not the immediate vendor – we will remove these complications for the sake of simplicity but suffice it to say that they do not present any problem to the analysis.

4This may sound similar to the “absence of basis” approach of contemporary legal systems, but whereas this concept is vague and unanchored in the crucial libertarian concept of property, our doctrine is certain – either there is a “mistaken” transfer or there is a valid declaration of transfer. Only one or the other can occur and they are mutually exclusive.

5Considerations as to whether a defendant “should” have made himself aware of the mistake are likely to be irrelevant – a court cannot force an individual or entity to look after its financial or proprietary affairs with any particular degree of care. Other, extra-legal considerations are likely to bring this about – businesses will want to keep accurate records in order to keep customers satisfied by stating accurately the contractual relations and the accounts between them.

6In some circumstances, however, such a covenant may serve to increase the value of a property. For example, the covenant may apply to all properties in, say, a housing development programme and will be designed to restrict and curtail certain activities in order to give a neighbourhood a certain quality and attractiveness.

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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.