The development of argumentation ethics as a justification for libertarian theory was a milestone in the philosophy of liberty. First presented in 1988 by Hans-Hermann Hoppe, it demonstrates the validity of self-ownership, private property rights, non-aggression, and so forth by showing that the act of arguing against them is at odds with the content of such an argument. Such a case is called a performative contradiction (perfomativer Widerspruch in the original German), and these cannot be rationally advanced in argument. Hoppe’s proposal was controversial at the time, and remains so. Murray Rothbard said of Hoppe’s work,
“In a dazzling breakthrough for political philosophy in general and for libertarianism in particular, he has managed to transcend the famous is/ought, fact/value dichotomy that has plagued philosophy since the days of the scholastics, and that had brought modern libertarianism into a tiresome deadlock. Not only that: Hans Hoppe has managed to establish the case for anarcho-capitalist-Lockean rights in an unprecedentedly hard-core manner, one that makes my own natural law/natural rights position seem almost wimpy in comparison.”
But many other libertarian theorists disagreed. Hoppe and his supporters have adequately rebutted most of their objections, but one critical review has not been countered to this author’s knowledge. In an article published on May 15, 2004, Auburn University philosophy professor Roderick Long offers a non-dismissive criticism of argumentation ethics which does not accept Hoppe’s formulation but leaves room for some future effort to show a connection between libertarian theory and the requirements of rational discourse. Let us respond to Long’s criticism on a point-by-point basis.
Long begins by reconstructing Hoppe’s argument as he understands it:
1. No position is rationally defensible unless it can be justified by argument.
2. No position can be justified by argument if it denies one or more of the preconditions of interpersonal argumentative exchange.
3. Interpersonal argumentative exchange requires that each participant in the exchange enjoy exclusive control over her own body.
4. To deny the right of self-ownership is to deny exclusive control over one’s own body.
5. Therefore, the denial of the right of self-ownership is rationally indefensible.
(1) and (2) are accurate reconstructions, as are (4) and (5). (3) is inaccurate; as Long correctly notes, one could shackle another person’s body but leave their mouth free to speak. But interpersonal argumentative exchange does require that each participant in the exchange enjoy exclusive control over some part of one’s own body, as one cannot communicate without exercising exclusive control over some part of one’s body. It is important to remember that is/ought is something of a false dilemma, in that there is a third matter which bears consideration; could. In sum, there are the way things currently are, the way they should be, and all of the ways they could be. When considering a theory of ethics and rights, it is insufficient to account only for a particular case; one must account for all possible cases. Any part of one’s body which may move could be used for communication (e.g. sign language), and the entirety of a person’s body either moves, is moved by parts which move, or is surrounded by parts which move. As such, one should own the entirety of one’s body because all of it has the potential to be part of an act of argumentation.
Long correctly notes that the conclusion (5) follows from the premises (1-4), and (5) also follows with the necessary modifications to (3) discussed in the previous paragraph. Long disputes Hoppe’s argument by disputing the truth of (1), (2), and (4). Thus, our task is to defend these three premises.
Long begins his critique of (1) by considering the nature of an argument, wondering whether Aristotelian negative demonstration or coherence among propositions count as arguments. Negative demonstration does count as an argument, although it is a more complicated form than affirmative demonstration. Coherence among propositions is necessary but not sufficient to count as an argument; one may make several propositions which do not contradict each other but which cannot be used together to make any conclusion. But both of these are consistent with deriving a conclusion from premises. Long combines the definition of an argument as a derivation of a conclusion from premises with (1) to contend that an infinite regress occurs:
“But presumably the premises themselves must be rationally defensible too; deriving a conclusion from premises that are not rationally defensible is hardly going to confer rational defensibility on the conclusion. So those premises, too, must be justified by argument – and so on for the premises of that argument. Thus we are launched on an infinite regress, with the apparent upshot that no position can be rationally justified – a performatively contradictory assertion if there ever was one.”
Long’s error in this critique is to neglect the fact that the premises of an argument may be first principles, which cannot be and do not need to be demonstrated, as they are self-evident. This saves Hoppe’s argument from the sort of infinite regress that Long describes.
For (2), Long attempts to show a counterexample:
“Consider the statement ‘I am the only person left alive.’ One can certainly imagine circumstances in which one would be warranted in endorsing this statement on the basis of the available evidence. (The last astronaut left on the space station watches the Earth explode ….) Hence the statement could in principle be justified by argument. Yet it certainly denies one of the preconditions of interpersonal argumentative exchange – namely, the existence of other arguers.”
That the statement could in principle be justified by argument is all that matters. As discussed earlier, a rigorous theory of ethics and rights must account for all possible cases. Just because a sentient being is the only one at the moment does not mean that this will always be the case. In Long’s example, perhaps other people were in another spacecraft which also survived, but were on the other side of Earth and will not come into view for some time. Perhaps intelligent extraterrestrials will arrive in a few hours. Perhaps the whole thing was a hoax set up to prank the astronaut.
Note that even if there were a valid concern here, it would be irrelevant because self-ownership is only a useful concept if other arguers exist. If one is the only sentient being in existence, then self-ownership is factually true simply because there exists no one who can challenge one’s self-ownership. Such a solitary sentient being need take no thought of legitimacy or rights, for who shall judge him to be in error?
Long criticizes (4) by asking whether it refers to fact, legitimacy, or right. That is, does denial of exclusive control over another person’s body indicate an acknowledgment of the nature of a current situation, a belief that one violates a moral duty by exercising exclusive control over one’s own body, a belief that one has a moral duty to interfere with another person’s control over their body? One could commit an act of aggression, which could deny the fact of another person’s self-ownership but not the legitimacy or the right. Long does not produce an example in which the legitimacy of self-ownership is accepted but the right of self-ownership is denied, though he contends that such a situation may exist. In the case of self-ownership, such an example requires that a person be using their self-ownership in a way that violates moral duties to other people, as nothing other than estoppel would be a sufficiently strong cause for denying a person’s self-ownership.
Long correctly notes that (4) is only true if it is taken to refer to right rather than fact or legitimacy, as using fact would mean that “might makes right” and using legitimacy would result in a performative contradiction (to argue that exclusive control of one’s body is illegitimate, one must exercise such control). Long uses this result to say of (3),
“But then, if the argument is to remain valid, premise (3) must likewise be reinterpreted to mean ‘Interpersonal argumentative exchange requires that each participant in the exchange enjoy a right to exclusive control over her own body.’ But why should we grant the truth of (3), under that interpretation? Whatever plausibility (3) had came from interpreting it as talking either about the fact or the legitimacy, not the right. When (3) is interpreted as talking about the right, it starts looking less like a premise and more like the intended conclusion.”
Now we see not only why Long’s formulation of (3) was inaccurate, but why it was necessary to correct. Had (3) been left unmodified, there would have been a serious error. But with (3) corrected and shown to have plausibility as a right, Hoppe’s argument holds.
Long concludes with two broader worries about Hoppe’s argument. Defending libertarian rights amounts to defending a view about the content of justice, which is at odds with Long’s Aristotelian position. Also, Hoppe’s argument commits us to recognize and respect a libertarian theory of rights regardless of our goals, which appears to say that there is a practical requirement without a means-end structure. We may dispense with these criticisms by rejecting the Aristotelian position in favor of a strict deontological framework. But as Long writes elsewhere of the deontological position,
“What sort of value does justice have? Is justice to be valued as a means, as an ultimate end, or neither?
Some deontologists might plump for the latter option: neither. Rights are not goals to be pursued, either as ends in themselves or as means to further ends; rather, they are side-constraints on our pursuit of goals. But it’s difficult to make sense of this idea praxeologically. If justice is neither one of our ultimate ends, nor a means to one of our ultimate ends, what reason could we have to care about it?
Suppose, then, that justice is an ultimate end — one that serves no further value beyond itself. Then either it is our sole ultimate end, or it is one among others. But it would be very odd to have justice as one’s sole ultimate end, as though respecting people’s rights were the one and only goal worth pursuing. Such an end would radically under-determine the shape of one’s life.
If justice is an ultimate end, then, it must be one among others. But in that case, how is it to be integrated with our other ultimate ends? Do we make trade-offs when ultimate ends conflict? Or do we look for some way of conceiving of our ultimate ends so that conflicts are impossible? In either case, we seem to be asking how to fit justice into the broader goal of an integrated life-plan – what the Greeks called eudaimonia. But then we are no longer treating justice as an ultimate end; justice now serves the more inclusive end of eudaimonia.”
These concerns merit an answer, and the answer is that rights are not side-constraints, but are hard limits which should be considered binding upon all people at all times. While this may not be accomplished in fact (might does not make right but it does make outcomes), it is an end worthy of pursuit. While justice is an ultimate end, this does not mean that it serves no further value beyond itself. The practical purpose of justice is to reduce unnecessary conflicts, which in turn reduces unnecessary destruction of property and loss of life. The end result of justice is a maximization of liberty. It is for this reason that a proper sense of justice, as illuminated by the Hoppean argument for libertarian rights, should stand above any other ultimate ends that one may have.
To conclude, a Hoppean argument for libertarian rights does work if formulated correctly, and there is no need to embed it within a eudaimonist framework. Long’s criticisms are better informed than most, but they ultimately fall short of toppling argumentation ethics.