Matt Zwolinski’s Case Against Libertarianism

On April 8, 2013, Matt Zwolinski published an article called “Six Reasons Libertarians Should Reject the Non-Aggression Principle” in which he argues that the non-aggression principle is not suitable as a universal moral code. In this rebuttal, I will show on a point-by-point basis that he has made an erroneous case, committed numerous logical fallacies, and actually made a case against libertarianism.

Many libertarians believe that the whole of their political philosophy can be summed up in a single, simple principle. This principle—the “non-aggression principle” or “non-aggression axiom” (hereafter “NAP”)—holds that aggression against the person or property of others is always wrong, where aggression is defined narrowly in terms of the use or threat of physical violence.

Many, but not all libertarians believe this. Some libertarians regard the non-aggression principle as a logical consequence of self-ownership, and allow logical consistency, moral consistency, and other direct logical consequences of self-ownership (such as the homesteading principle) to temper the non-aggression principle. This is the view which will be defended here, and an example of this tempering may be found here.

From this principle, many libertarians believe, the rest of libertarianism can be deduced as a matter of mere logic. What is the proper libertarian stance on minimum wage laws? Aggression, and therefore wrong. What about anti-discrimination laws? Aggression, and therefore wrong. Public schools? Same answer. Public roads? Same answer.

It is not from the non-aggression principle, but from self-ownership that the rest of libertarian theory may be deduced from logic. Zwolinski writes as though rationalism, logical consistency, and apriorism are contemptuous things, and this is important for understanding the worldview of people like him.

The libertarian armed with the NAP has little need for the close study of history, sociology, or empirical economics.

A priori theory stands above such experience, forming the hard boundaries within which human events occur, but it cannot account for the subjectivity of human action and preference. Thus, the libertarian armed with self-ownership and its corollaries must still study history and sociology in order to learn from past mistakes and estimate how an idea might play out in practice. Economics, on the other hand, is not properly understood as an empirical discipline because the scientific method cannot be used in a field where controlled experiments cannot be performed and cannot be applied to unquantifiable variables (e.g. personal preferences).

With a little logic and a lot of faith in this basic axiom of morality, virtually any political problem can be neatly solved from the armchair.

Self-ownership and its corollaries are not a matter of faith, but of proof. Self-ownership is the right to exclusive control over one’s physical body. To argue that self-ownership is invalid, one must exercise exclusive control over one’s physical body in an act of communication. The content of such an argument is in opposition to the act of communicating the argument, so it is false by performative contradiction. By the three laws of thought, self-ownership must be true if any argument against it must be false. Self-ownership is thus an axiom, and the non-aggression principle is a theorem that results from respecting each person’s self-ownership in interactions between people. Not all political problems may be neatly solved from the armchair by extrapolating from this point, but most can.

On its face, the NAP’s prohibition of aggression falls nicely in line with common sense. After all, who doesn’t think it’s wrong to steal someone else’s property, to club some innocent person over the head, or to force others to labor for one’s own private benefit? And if it’s wrong for us to do these things as individuals, why would it be any less wrong for us to do it as a group – as a club, a gang, or…a state?

A great many people throughout history have thought it acceptable to engage in such behaviors. This, along with the erroneous belief that the problems of theft, assault, and slavery (among others) may be solved by limiting them to agents of the state and calling them taxation, war, and conscription, is what led people to create states.

But the NAP’s plausibility is superficial. It is, of course, common sense to think that aggression is a bad thing. But it is far from common sense to think that its badness is absolute, such that the wrongness of aggression always trumps any other possible consideration of justice or political morality. There is a vast difference between a strong but defeasible presumption against the justice of aggression, and an absolute, universal prohibition. As Bryan Caplan has said, if you can’t think of counterexamples to the latter, you’re not trying hard enough. But I’m here to help.

It is not the case that the non-aggression trumps any other possible consideration of justice or political morality, but these considerations must be limited to logical consistency, moral consistency, and other direct logical consequences of self-ownership, as discussed above. Caplan’s example of breathing on someone amounting to a violation of self-ownership is rather silly, as there is no context for the situation. Whose property are the two people on? Did the person consent to being breathed on? Was the content of the exhalation capable of damaging the person in some way? Without answers to these questions (and perhaps others), the example is unilluminating.

In the remainder of this essay, I want to present six reasons why libertarians should reject the NAP. None of them are original to me. Each is logically independent of the others. Taken together, I think, they make a fairly overwhelming case.

1. Prohibits All Pollution – As I noted in my last post, Rothbard himself recognized that industrial pollution violates the NAP and must therefore be prohibited. But Rothbard did not draw the full implications of his principle. Not just industrial pollution, but personal pollution produced by driving, burning wood in one’s fireplace, smoking, etc., runs afoul of NAP. The NAP implies that all of these activities must be prohibited, no matter how beneficial they may be in other respects, and no matter how essential they are to daily life in the modern industrialized world. And this is deeply implausible.

The non-aggression principle does not prohibit all pollution. Burning wood in one’s fireplace (or burning coal in a power plant to provide electricity) can be necessary for survival to prevent hypothermia, cook food, sanitize drinking water, etc. The exercise of property rights to prevent pollution from such an activity will result in deaths. A right to property cannot supersede a right to life because exercising a right to property requires one to be exercising a right to life, and that which is dependent cannot overrule that upon which it is dependent. Pollutants from non-essential conveniences (such as modern transportation) or vices (such as smoking) are harder to defend, as there is no imperiled life to weigh against property rights. Rothbard recognized that technology has developed to produce pollution because governments have interfered with private property rights in this area, and a society where this was prohibited would have developed in a more environmentally friendly manner from the outset. Zwolinski assumes that the modern industrialized world must be as it is in this sense. As always, historical determinism is there for those who lack courage and imagination.

2. Prohibits Small Harms for Large Benefits – The NAP prohibits all pollution because its prohibition on aggression is absolute.

This has been addressed above.

No amount of aggression, no matter how small, is morally permissible. And no amount of offsetting benefits can change this fact. But suppose, to borrow a thought from Hume, that I could prevent the destruction of the whole world by lightly scratching your finger? Or, to take a perhaps more plausible example, suppose that by imposing a very, very small tax on billionaires, I could provide life-saving vaccination for tens of thousands of desperately poor children? Even if we grant that taxation is aggression, and that aggression is generally wrong, is it really so obvious that the relatively minor aggression involved in these examples is wrong, given the tremendous benefit it produces?

Yes, it is obvious that such aggressions are wrong because morality of an action cannot depend on its consequences. Disproving consequentialism requires two steps. First, we must prove that determinism is false. Determinism is the philosophical position that for every event, including human action, there exist conditions that could cause no other event. This implies that it is not possible to persuade others of one’s philosophical position, as strict determination of our actions (and therefore, our philosophical positions) would mean they were completely necessitated by past events beyond our present control, and therefore not alterable by argumentation. But the effort to persuade others of one’s philosophical position is a condition of rational argumentation. Thus, to argue for determinism is to try to convince someone that it is impossible to convince them of anything, which is a performative contradiction. Therefore, determinism must be false.

With determinism refuted, two people who find themselves in identical situations and who take identical actions may experience different results, as the future is not directly knowable by extrapolating from the past. Regardless of one’s criteria for distinguishing good consequences from evil consequences, the situations may play out with good consequences in one situation and with evil consequences in the other situation. Thus, the same action taken under the same circumstances can be both good and evil. This is a contradiction, therefore consequentialism is false.

The only way around this argument is to claim that determinism is compatible with trying to change one’s mind, in that an arguer could be determined to try to persuade someone of something and the listener could be determined to accept it. But this leaves a person with no will to make choices, and thus no moral agency. The resulting moral nihilism would also defeat consequentialism, but moral nihilism is also false by performative contradiction because the act of argumentation implies that behavioral norms exist.

3. All-or-Nothing Attitude Toward Risk – The NAP clearly implies that it’s wrong for me to shoot you in the head. But, to borrow an example from David Friedman, what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger? What if it is not one bullet but five?

Performing a credible threat against someone counts as initiating the use of force, so aiming loaded firearms at people and pulling the trigger counts as an NAP violation and may be defended against by any amount of force necessary to end the threat.

Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway (what if we suffer a heart attack, or become distracted), or when we fly airplanes over populated areas. Most of us think that some of these risks are justifiable, while others are not, and that the difference between them has something to do with the size and likelihood of the risked harm, the importance of the risky activity, and the availability and cost of less risky activities. But considerations like this carry zero weight in the NAP’s absolute prohibition on aggression. That principle seems compatible with only two possible rules: either all risks are permissible (because they are not really aggression until they actually result in a harm), or none are (because they are). And neither of these seems sensible.

When people drive cars on the highway, they are implicitly consenting to be in a situation where there is a risk of being in a crash. The case of flying airplanes over populated areas depends on which was there first, the airplanes or the populated areas. If private property owners are in place, airplanes start flying overhead, and they do not consent to the risk of a crash (or even the pollution), then the airplanes should find another path. If the airport is already operating and private property is established afterward, then the property owners have implicitly consented to the risk which is present from the outset. In general, people will enter into contracts, create insurance methods, and establish private property rights for the purpose of dealing with risk in a way that avoids aggression.

4. No Prohibition of Fraud – Libertarians usually say that violence may legitimately be used to prevent either force or fraud. But according to NAP, the only legitimate use of force is to prevent or punish the initiatory use of physical violence by others. And fraud is not physical violence. If I tell you that the painting you want to buy is a genuine Renoir, and it’s not, I have not physically aggressed against you. But if you buy it, find out it’s a fake, and then send the police (or your protective agency) over to my house to get your money back, then you are aggressing against me. So not only does a prohibition on fraud not follow from the NAP, it is not even compatible with it, since the use of force to prohibit fraud itself constitutes the initiation of physical violence.

Many libertarians define aggression as the initiation of the use of force or fraud against a person or their property, in which case this criticism is nonsensical. Zwolinski’s narrower view leaves no room to use force to reclaim stolen property, stop a person who hires hit-men to kill innocent people, or generally stop any violation of life, liberty, or property where responsibility is obfuscated. This confusion is all too common, and it is a major reason for disputes within libertarian circles.

5. Parasitic on a Theory of Property – Even if the NAP is correct, it cannot serve as a fundamental principle of libertarian ethics, because its meaning and normative force are entirely parasitic on an underlying theory of property. Suppose A is walking across an empty field, when B jumps out of the bushes and clubs A on the head. It certainly looks like B is aggressing against A in this case. But on the libertarian view, whether this is so depends entirely on the relevant property rights – specifically, who owns the field. If it’s B’s field, and A was crossing it without B’s consent, then A was the one who was actually aggressing against B. Thus, “aggression,” on the libertarian view, doesn’t really mean physical violence at all. It means “violation of property rights.” But if this is true, then the NAP’s focus on “aggression” and “violence” is at best superfluous, and at worst misleading. It is the enforcement of property rights, not the prohibition of aggression, that is fundamental to libertarianism.

Against those who use self-ownership as the fundamental principle, this is a straw man fallacy. That Zwolinski has used his column at Bleeding Heart Libertarians to share this view makes this all the more mystifying. Zwolinski correctly realizes that NAP is close to the fundamental libertarian principle but is not it, but fails to grasp its relationship to property rights. The NAP and property rights are both logical corollaries of self-ownership, which is the fundamental principle. As private property is an extension of self-ownership through the mixing of one’s labor with previously unowned natural resources, trespassing on another person’s property is an act of aggression which may be defended against by any amount of force necessary to end the threat. That said, the amount of force in this particular example may be excessive, as asking the person to leave may be sufficient. Even so, more information about the situation would be needed to judge the case, as explained here.

6. What About the Children??? – It’s one thing to say that aggression against others is wrong. It’s quite another to say that it’s the only thing that’s wrong – or the only wrong that is properly subject to prevention or rectification by force. But taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind.

Again, this is a straw man fallacy against those who use self-ownership as the fundamental principle and the non-aggression principle as a corollary. That said, Rothbard was wrong about parenting. He viewed parenting as a type of limited ownership claim when it is actually a sort of regency over a child’s affairs until the child is no longer helpless and is capable of taking over the responsibilities of self-ownership. This mistake led him to believe that parents have no positive obligations to infants under their care. When a legal guardian of a child accepts this status, that person implicitly accepts the positive obligations that come with it. One of these obligations is to sustain the life of the child, as refusing to do so defeats the purpose of the guardianship. Just as a ship captain who has agreed to ferry passengers across the ocean may not dump them overboard into the deep while claiming that there are no positive duties to the passengers, the guardian of a child may not abandon the child to starve. Both cases amount to murder.

There’s more to be said about each of these, of course. Libertarians haven’t written much about the issue of pollution. But they have been aware of the problem about fraud at least since James Child published his justly famous article in Ethics on the subject in 1994, and both Bryan Caplan and Stephan Kinsella have tried (unsatisfactorily, to my mind) to address it. Similarly, Roderick Long has some characteristically thoughtful and intelligent things to say about the issue of children and positive rights.

Zwolinski seems to be unaware of Stefan Molyneux’s proposal for dealing with pollution, among other issues. Fraud and positive rights concerning children have been addressed above.

Libertarians are ingenious folk. And I have no doubt that, given sufficient time, they can think up a host of ways to tweak, tinker, and contextualize the NAP in a way that makes some progress in dealing with the problems I have raised in this essay.

They already have, and Zwolinski seems to be entirely unaware of this.

But there comes a point where adding another layer of epicycles to one’s theory seems no longer to be the best way to proceed. There comes a point where what you need is not another refinement to the definition of “aggression” but a radical paradigm shift in which we put aside the idea that non-aggression is the sole, immovable center of the moral universe. Libertarianism needs its own Copernican Revolution.

Zwolinski repeats the straw man fallacy that non-aggression rather than self-ownership is the center of the moral universe. As George Smith points out, in order to have a paradigm shift, there must be a competing paradigm. Zwolinski’s view is that liberty should be regarded as a defeasible presumption, and this is not a revolutionary position. It was held by many of the classical liberals of the eighteenth and nineteenth centuries. If anything, Zwolinski is playing the part of Ptolemy, against whose ideas the Copernican Revolution triumphed. The Copernican Revolution, then, would be to view libertarian ethics as being a priori true and inflexible, although centered on self-ownership rather than non-aggression.

To conclude, none of Zwolinski’s six examples pass muster. In each of them, he either puts forward an erroneous case (1, 2, 3) or knocks over a straw man (4, 5, 6). But the idea that the non-aggression principle should be rejected, as the title of Zwolinski’s article suggests, is tantamount to rejecting libertarianism itself, as doing so permits all initiations of the use of force and subsequent escalations thereof, with the end result being authoritarianism or complete chaos, perhaps both.

Support The Zeroth Position on Patreon!