Authority, Anarchy, and Libertarian Social Order

On May 8, Fritz Pendleton published an article at Social Matter in which he argues that liberty is best preserved by authority rather than anarchy. He then proceeds to launch a misguided attack against libertarianism, all while misunderstanding authority, anarchy, liberty, and the nature of a libertarian social order. Let us examine what is wrong with Pendleton’s case on a point-by-point basis.

Stateless In Somalia

Pendleton begins with the old canard of Somalia-as-libertarian-utopia, though to his credit, he does not invite all libertarians to emigrate there. His description of the situation is essentially correct:

“It is a patchwork of warlords who have each parceled out a slice of mud to call his own, to rule according to his whims and fetishes. There are the Islamic warlords of al-Shabaab in the south, the government strongmen who collaborate with al-Shabaab when it suits them, the Somaliland separatists who want a separate nation in the north, and a thousand other men of questionable loyalties.”

Pendleton claims that “it takes a certain type of idiot to look at Somalia and see something promising,” then that “it requires an idiot of some erudition to see promise in a failed state like Somalia.” These are not equivalent. To look at Somalia and see something promising is to examine the entirety of their culture and find that there is at least one idea which could be adopted elsewhere to improve another society. To see promise in a failed state like Somalia is to believe that the situation in that particular place can be greatly improved in the foreseeable future. The former endeavor makes far more sense than the latter.

Though he is correct to say that “libertarians are interested in Somalia primarily because its central government is weak and has no effective presence throughout most of the nation,” his assertion that anarchy is not an effective solution to much of anything is confused. An absence of rulers is not meant to be a solution to anything in and of itself; its role in libertarian theory is to remove the statist intervention in the market economy that inhibits and/or prevents individuals from working together to find effective solutions to problems. Pendleton’s passing mention of human biodiversity is also misplaced, as the best means of analyzing anarchy in Somalia is to compare it to statism in Somalia, not to anarchy elsewhere or statism elsewhere. We are thus considering the same thede under different conditions rather than different thedes under the same conditions. His claim that “whatever the merits of decentralization in theory, in practice it mostly involves being subject to the whims of the local warlord and his cadre” is particular to the current cases of failed states. There is good reason to believe that a controlled demolition of a state apparatus by people who wish to impose a libertarian social order would not be like this because the people would have the will and means to disallow it. Even so, a nation-state government is essentially a warlord writ large. Localizing this evil and reducing its strength makes it easier to bribe, escape, or overthrow, which is a definite improvement.

Pendleton claims that a libertarian must search hard to find supporting evidence in Somalia, but the evidence is clear. Before Mohamed Siad Barre’s regime fell in 1991, the annual birth rate was 0.46 percent, the infant mortality rate was 11.6 percent, the life expectancy was 46 years, the annual death rate was 0.19 percent, the GDP per capita was $210, the adult literacy rate was 24 percent, and 35 percent of the people had access to safe water. The most recent measurements are that the annual birth rate is 0.40 percent (2016), the infant mortality rate is 9.66 percent (2016), the life expectancy is 52.4 years (2016), the annual death rate is 0.133 percent (2016), the GDP per capita is $400 (2014), the adult literacy rate is 38 percent (2011), and 45 percent of the people have access to safe water (2016). The telecommunications and money transfer industries have also improved to offer some of the best service in Africa.

It is easy to argue, as Pendleton does, that these improvements are negligible from his relatively cushy first-world environs, where such improvements on either a real or a percentage basis are barely noticeable. But in the third-world hellhole that is Somalia, such improvements can be the difference between life and death, not to mention the difference between having some basic quality of life or not having it. His claim that anarchy is not much different than communism is asserted without evidence and may therefore be dismissed without evidence.

The Case of Tudor England

Pendleton seeks to contrast the anarchy of Somalia with the historical Tudor monarchy of England. His contention that giving people more freedoms is not a prerequisite for a well-run society is technically correct but beside the point. The fact is that a society need not be ‘run’ at all in the sense of top-down management by a ruling class. People can (and in the absence of interference, do) form voluntary associations to solve problems without being ordered around at gunpoint by government minions. That people have flourished in times of gentle oppression, a strange phrase indeed, says more about human resilience than it says about the merits of oppression.

He continues,

“Henry VII and VIII set in motion a series of clever reforms that reached a climax during the rule of Elizabeth I. England had finally found its stride. It must be noted that Elizabethan England, despite its relative freedom, was not keen on handing out legal recognition of liberties to its people. The era was one of unapologetic centralization. The crown’s subjects were given no guarantees of free speech at all; in fact, the censors worked hard and fast to clamp down on anything they perceived as dissent. Freedom of speech was still very far over the political horizon. And yet, despite the book burnings, despite the cages, despite the severed heads around London Tower, the Elizabethan era gave us Shakespeare, Marlowe, Spencer, Jonson, and Bacon. Imagine an era that gave the English language so much genius and not one assurance of free speech to go with it!”

One must ask whether this occurred because of oppression or in spite of it. It is possible, of course, that the great writers of the day produced such memorable works because the adversity of censorship forced them to innovate novel speech patterns in order to evade the censors. In an earlier age, Chaucer gained a lasting place in the canon of English literature for doing just that. But one must wonder, what potential was wasted? What great works were never penned because their would-be-authors feared for their lives? Perhaps the literary marvels of Elizabethan England were due to its relative freedom rather than its censorship, and more liberty would have been better.

Pendleton asks us to consider that the Elizabethan era was when the British Empire began in earnest, but does not explain how this happened. Spain, Portugal, and even France were ahead of England in colonizing the New World and expanding trade routes in the latter half of the 16th century. It was not until Elizabeth died and James VI and I became King of Scotland and England that the English shifted their attention from attacking the colonies of other nations to the business of establishing their own overseas colonies. The burdensome regulations of the day may disappoint a contemporary libertarian, but the English trade policies were about as good as there were at the time.

Chile and Singapore

Next, Pendleton presents Augusto Pinochet’s Chile and Lee Kuan Yew’s Singapore as examples of anti-libertarian success stories. Both pursued economic liberty while restricting social and political liberty; as Pendleton says of the left-libertarians, “a libertarian would rather choke on his bow-tie than defend [their political policies].” Though left-libertarians tend to recoil at such measures, a reactionary understanding of libertarianism provides quite a different view. The libertarian reactionary understands that the desired goal of a libertarian social order can only be achieved by physically removing the state from power. Doing this, however, requires a critical mass of the population to use self-defense against the current system. If such a critical mass is absent, then those who seek liberty must turn to other methods. Those libertarians who are capable of checking their autism and doing what is necessary within context may come to support a Pinochet- or Yew-type for the purpose of restoring a balance of political terror. The idea is for libertarians to use a reactionary authoritarian approach in order to suppress leftists and reverse the damage they have done, overthrow the regime once the left is defeated, then maintain the power vacuum by continuous application of defensive force. Furthermore, a libertarian social order will not necessarily offer a great deal of social and political liberty, especially to those who do not hold allodial title over private property and/or disagree with anarcho-capitalism. As Hans-Hermann Hoppe explains,

“As soon as mature members of society habitually express acceptance or even advocate egalitarian sentiments, whether in the form of democracy (majority rule) or of communism, it becomes essential that other members, and in particular the natural social elites, be prepared to act decisively and, in the case of continued nonconformity, exclude and ultimately expel these members from society. In a covenant concluded among proprietor and community tenants for the purpose of protecting their private property, no such thing as a right to free (unlimited) speech exists, not even to unlimited speech on one’s own tenant-property. One may say innumerable things and promote almost any idea under the sun, but naturally no one is permitted to advocate ideas contrary to the very purpose of the covenant of preserving and protecting private property, such as democracy and communism. There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society.”[1]

This is quite similar to the standard of no voice and free exit advocated by Nick Land and some other prominent neoreactionaries. The only real difference is that the libertarian reactionary is especially concerned with making the sovereign units as small as possible. It is worth noting that both proposals blend anarchy with authority, in that there is an irreducible anarchy between sovereigns who have authority within their private properties.

Pendleton wonders how Singapore would have preserved liberty in the midst of conflicts between the various ethnic groups present there without Yew’s rule, and how the various religious groups could have been kept from fighting in England without Elizabeth I’s despotism. The possible answers to such questions are the same in each case. First, groups may hire neutral third parties to resolve disputes. Second, the groups may voluntarily segregate themselves so as to avoid contact with each other. Third, some groups that cannot get along with others may have a mass exodus. Fourth, a troublemaking group may be forcibly exiled by all of the other groups. Fifth, each side may be armed to such an extent as to create peace through mutually assured destruction. Sixth, the groups may simply choose to fight it out, as some hostilities reach a point of no return. In the first five cases, the preservation of liberty is maximized. The sixth case is far more troublesome, but such quarrels can be formalized and separated so as not to catch innocent bystanders in the crossfire. A system of dueling has filled this role in many historical societies. There are thus many options other than authoritarianism for preserving liberty; the only question is whether people care to utilize them.

Libertarianism and Reaction

Pendleton writes,

“The reactionary and libertarian both agree that small governments are good. But the reactionary feels that small governments are made not by relinquishing authority, as the libertarian would do, but by strengthening it. Liberty is too precious to be entrusted to anarchy in the same way that diamonds are too precious to be entrusted to one’s doorstep.”

Here, he misunderstands what a libertarian would do, at least those who are not leftists. A libertarian reactionary seeks not to relinquish authority, but to make it as absolute as possible in the hands of the private property owner within that person’s private property. And contrary to Pendleton, liberty requires anarchy because the freedom to do as one wishes as long as one respects the right of other people to do likewise and commits no aggression against them is violated by a state apparatus by definition. If a state is present, it will fund its activities through taxation and civil asset forfeiture, take private property through eminent domain, and restrict the use of property through intellectual monopoly, zoning, and environmental regulations. Its officials and agents will choose the nature of the law and the enforcement thereof, meaning that they rule the law and not vice versa. Its enforcers will initiate the use of violence against people who are known to disagree with government statutes and acts upon their disagreements, thus presenting a constant threat to peace. Its agents are allowed to do that which is considered criminal for anyone else to do, and the system is set up to keep them from being held to account. It will force people to associate with it regardless of whether they want to use or pay for its services. Therefore, it is clear that liberty cannot be protected by state authority; such a threatening protector is a contradiction of terms.

Final Arbitration

Next, Pendleton presents a case to make the ‘final arbiter of disputes’ criticism of libertarianism:

“Suppose we have one of those highly attenuated legal battles where the details of the case are complicated and emotionally charged. Let us suppose that a drunk driver crashed into a tree and his passenger was killed when she flew through the windshield; she had not worn her seat belt. The grieving husband of the passenger demanded compensation from the driver to help take care of his kids in place of his now deceased wife. Daycare is expensive these days, after all. The driver apologized profusely but pointed out that the passenger was just as responsible for her death because she was not buckled into her seat. The husband countered by saying that the belt would not have been an issue if the driver had not been drunk and crashed into a tree.

Since these men live in a libertarian utopia, there is no superseding legal authority to arbitrate: a third-party arbitration company will have to be hired. Now let’s suppose that one of these arbitration companies is owned by a brother-in-law of the driver, and not surprisingly, the driver only agrees to hire that company. The husband refuses. The driver in turn refuses to pay any compensation whatsoever. The furious husband now threatens to kill the wife of the driver to make him understand what it feels like to lose a loved one.

How can any libertarian who sings the praises of anarchy not see how this situation will only continue to escalate? How can there be any justice for the woman who lost her life in the original crash and what about the violations of liberty that will ensue when this conflict devolves into a family feud? If there had been one authority to take control of this dispute the liberties of everyone involved would have been much more safely guarded. In a world where emotion forms the greater part of human action, liberty requires authority.”

This situation may be resolved in advance through contracts. The owners of the road set the conditions for operating vehicles on their private property, with violators subject to physical removal not unlike the traffic stops, arrests, and impounding of vehicles today. They may demand that everyone using their roads have arbitration services which do not involve such conflicts of interest, and contrary to some myopic analysis to the contrary, are almost certain to frown upon drunk drivers. They might even have all cars on their roads driven by robots, which nips this scenario in the bud. Failing this, a person who has committed an offense and refuses to make restitution can be ostracized from society until compliance is gained. Furthermore, such a person may rightly be forced to make restitution because an unrepentant aggressor is not subject to the non-aggression principle through his continuing violation of it. The driver’s wife, however, is an innocent bystander unless she was responsible for getting him drunk and/or making him drive while intoxicated. Threatening her absent these conditions makes the widower an aggressor to be subdued. As a libertarian society would have several private defense agencies available to handle such applications of defensive force and almost everyone would have a protection policy with one of these companies, an escalation is quite unlikely. Even if this kind of situation does escalate, it pales in comparison to the carnage wrought by the one authority that Pendleton defends. States were responsible for 203 million democides and war deaths in the 20th century alone. This is hardly a price worth paying to stifle a few family feuds.

More generally, a final arbiter of disputes cannot exist because no person or institution can absolutely guarantee that any issue will be resolved forever with no possibility of review. The way that disputes ultimately end in any social order is that some party finds the dispute to no longer be worth continuing. Everything else, whether statist courts and legislatures or anarchic arbitration services and private defense agencies, is simply window dressing on this immutable truth.

Of Rules and Rulers

Pendleton writes,

“A libertarian who is honest with himself has to ask why even jungle tribes have a chief and why high schools have hall-monitors. Human beings require authority, and if authority is to mean anything at all, it requires the power of compulsion; liberty cannot last long in a nation that thinks of its authority as a polite suggestion.”

It is important to understand the true meaning of anarchy. Anarchy comes from Greek ἀναρχία, which is typically translated as ‘without rulers.’ More precisely, it means ‘without beginning to take the lead.’ This is not the same as ‘without rules’ or ‘without leaders.’ Having a ruler means that there are no rules because the ruler has authority over the rules and not vice versa. That the lead is not taken does not mean that no one can lead because leadership can be freely given. This is well-understood in every aspect of life other than politics. In the words of Mikhail Bakunin,

“Does it follow that I reject all authority? Far from me such a thought. In the matter of boots, I refer to the authority of the bootmaker; concerning houses, canals, or railroads, I consult that of the architect or engineer. …But I allow neither the bootmaker nor the architect nor the savant to impose his authority upon me. I listen to them freely and with all the respect merited by their intelligence, their character, their knowledge, reserving always my incontestable right of criticism and censure. I do not content myself with consulting authority in any special branch; I consult several; I compare their opinions, and choose that which seems to me the soundest. But I recognize no infallible authority, even in special questions; consequently, whatever respect I may have for the honesty and the sincerity of such or such an individual, I have no absolute faith in any person. Such a faith would be fatal to my reason, to my liberty, and even to the success of my undertakings; it would immediately transform me into a stupid slave, an instrument of the will and interests of others.”[2]

Additionally, compulsion and initiatory force are not equivalent. This is because compulsion may take the form of defensive force or of less violent means such as shaming and ostracism. Thus, if human beings require authority (and Pendleton does not prove that they do), a libertarian social order is quite capable of compelling people through contract law, ostracism, and private military forces.

Mischaracterization

Pendleton laments that not many libertarians will be swayed by his arguments, but does not understand why. It is not the case that libertarians are “far too busy sketching intricate political systems on paper to be bothered with considerations of human psychology.” Libertarianism, properly understood, is anti-political; its primary interest in political systems is in finding ways to destroy them without causing unnecessary damage to the social fabric. As for considerations of human psychology, they should lead one to reject the state as an enabler and multiplier of evil in the world. Ultimately, libertarians are not swayed by his arguments because they are easily refuted, as shown both above and below.

The Definition of Liberty

Pendleton writes,

“Liberty, as we now know it, is a set of unquestionable boundaries that are owed to all citizens: the right to peaceable assembly, the right to free speech, the right to a free press, and so on. The problem with these ‘rights’ is that they are very enticing ideas that are very murky in their specifics. They exist in the minds of Americans as a hazy bundle of entitlements, as things that they are owed, rather than things that they must earn.

The greatest problem with this notion of liberty as an entitlement is that once citizens start declaring rights as ‘universal’ and ‘God-given’ there is no mechanism to stop them from continually inventing new ones. The ‘right to privacy’ or the ‘right to universal healthcare’ are muddled ideas that our founding fathers never anticipated. Jefferson and Madison almost certainly would not have approved of them, but they are ideas that have as much legitimacy as America’s own Bill of Rights: if Madison can conjure up new rights with a few quill strokes there is likewise nothing to stop Supreme Court justices from doing the same thing. And so the list of entitlements owed to Americans steadily grows longer as its list of responsibilities dwindles.”

He correctly criticizes the contemporary understanding of liberty in liberal democracies. As I have explained elsewhere, these rights belong to private property owners within the spaces that they own. No one has a right to assemble, speak, print, and so on within private property if the owner disagrees with such activities. Those who would do so are trespassing and thus subject to physical removal. The current problem is that the state has greatly interfered with private property. This is a problem of the commons, and the only solution is to eliminate the commons and return it to private ownership.

From here, as Pendleton realizes, it only gets worse. When people fail to connect rights to logic and ownership of property, or more simply, to thought and action, they confuse negative rights with so-called “positive rights.” These positive rights cannot be valid because their provision violates the negative rights of other people. For instance, a right to healthcare implies that someone must be forced to provide healthcare, even if it against the provider’s wishes to serve that person.

But though he correctly identifies the problem, Pendleton proposes an incorrect solution. He seeks to restore the ancient Roman ideal of liberty rather than to correct the errors in the practice of modern liberty. The Romans viewed liberty in a collective sense, as imposing responsibilities to the state in eschange for individual rights. In truth, liberty is neither a list of entitlements nor a reward for serving society or the state; it is the result of gaining and defending private property. With this understanding, it is not ironic at all that libertarians would condemn a system which subordinates the individual to a collective as fascism (or more appropriately, as communism).

Rationalism and Empiricism

Pendleton claims that the Roman notion of liberty has the example of Singapore while the libertarian has no compelling models; only fantasies and Somalia. Implicit in this claim is a sort of historical determinism that demonstrates a lack of courage and imagination to look beyond what has been and see what is possible but as yet unrealized. As explained above, Somalia has shown improvement without a state. And fortunately, libertarians have more than fantasies; we have a priori theory. In the words of Hoppe, “A priori theory trumps and corrects experience (and logic overrules observation), and not vice-versa.”[3] This is because one may use rationalism without using empiricism, but one cannot use empiricism without using rationalism. That rationalism is independent and empiricism is dependent establishes a clear hierarchy between the two ways of knowing. Of course, this will not convince a strong empiricist of the historical determinist variety, but this has no bearing upon the truth value of the argument.

That being said, it is worth considering why there are no empirical examples of a stateless propertarian society in recent times. The obvious answer is that states initiate violence to sustain their operations, and libertarians have yet to suppress this aggression with enough defensive force to stop it. The other, less obvious explanation is that those who govern in statist systems know at one level or another that their institutions are unnecessary for the functioning of society, but that most people are more empirical than rational in their thinking. It is for this reason that they cannot allow a working example of a stateless society to be created, as this would permanently turn the masses against the state. They thus use force not only to maintain their power, but to ensure that most people never consider alternatives which do not include them.

Conclusion

Pendleton closes by contemplating the issues on the horizon for America, from racial tensions to Islamic terrorists, though he says nothing of the various economic issues. However, the “furious, explosive derailment” he fears is not only unavoidable, but necessary. The current system cannot be fixed; it must end in either a controlled demolition or a chaotic collapse. In any event, the answers are to be found in the restoration and enforcement of private property rights and freedom of association, with physical removal for those who challenge these norms. It is best to work toward emerging from this chaos looking neither like Singapore nor like Somalia, but as something completely novel in time memorial: a functional stateless society of covenant communities.

References:

  1. Hans-Hermann Hoppe (2001). Democracy: The God That Failed. Transaction Publishers. p. 218
  2. Bakunin, Mikhail (1871, 1882). God and the State. Mother Earth Publishing Association. Ch. 2
  3. Hoppe, p. xvi.

On Libertarianism and Conquest

The institution of private property is a fundamental aspect of economics and social interactions. It serves the practical purpose of avoiding conflicts over scarce resources so that efforts may be put toward better purposes. Theories concerning the creation, acquisition, trade, inheritance, and defense of private property form much of libertarian philosophy. What has gone largely unexplored in libertarian theory thus far is the role of conquest in the determination of property rights. Almost all inhabited land on Earth has been conquered by one group of people or another at some time in the past, so as long as this remains unexplored, libertarianism will be left open to attacks from all manner of enemies of private property rights. Thus, it is necessary to examine conquest from a libertarian perspective.

Man vs. Nature

The starting point for all of libertarian philosophy is self-ownership; each person has a right to exclusive control of one’s physical body and full responsibility for actions committed with said control. Note that in order to argue against self-ownership, one must exercise exclusive control of one’s physical body for the purpose of communication. This results in a performative contradiction because the content of the argument is at odds with the act of making the argument. By the laws of excluded middle and non-contradiction, self-ownership must be true because it must be either true or false, and any argument that self-ownership is false leads to a contradiction.

Because each person has a right to exclusive control of one’s physical body, it is wrong for one person to initiate interference with another person’s exclusive control of their physical body without their consent. This is how the non-aggression principle is derived from self-ownership. Because each person has full responsibility for the actions that one commits with one’s physical body, one may gain property rights in external objects by laboring upon unowned natural resources. This works because one is responsible for the improvements that one has made upon the natural resources, and it is impossible to own the improvements without owning the resources themselves.

In a sense, all property rights are based on conquest, in that property rights are created when man conquers nature by appropriating part of nature for his exclusive control and use. This is a powerful antidote to the contention of many opponents of private property that property titles are somehow invalidated by a history of conquest, of people taking by force what is not rightfully theirs. But we can do even better than this, as the next sections will show.

Man vs. Man

As stated earlier, property rights are useful in practice because they minimize conflicts over scarce resources by establishing who rightfully controls what territory. This results in a significant amount of loss prevention, which allows the people who would have died and the property that would have been damaged in such conflicts to instead survive and prosper.

But what happens when such norms are not respected? Let us consider the simplest possible example and extrapolate from there. For our first case, consider a planet which has only two sentient beings. Let us call them Archer and Bob. Archer has mixed his labor with some land and thus acquired private property rights over that area. Bob wants the land that belongs to Archer. That Archer has a right to defend himself and his property from the aggressions of Bob by any means necessary, and that Archer has the right to retake anything that Bob takes is not disputed by any reputable libertarian theorist. But what if Bob kills Archer? In that case, the property does not rightfully pass from Archer to Bob in theory. But Bob now has exclusive control over the property and there is no other sentient being present to challenge him. Thus, Bob becomes the de facto owner, even though this is illegitimate de jure.

The above case is interesting but trivial because social norms are irrelevant if there is neither a community to observe them nor a mechanism to enforce them. As such, we will spend the rest of this essay adding complexity to the first case to arrive at meaningful results. For our second case, suppose that there were another person present to challenge Bob. Let us call him Calvin. Because libertarian theory is a logical construct, it is subject to logic in the form of rationality and consistency. To violate the rights of another person while claiming the same rights for oneself is not consistent. Hypocrisy of this kind cannot be rationally advanced in argument; it has the same effect at the subjective level that a performative contradiction has at the objective level. In other words, all people do not lose the right to life because someone somewhere somewhen commits a murder, but the murderer does. This means that Bob cannot claim a right to his own life or to the property he occupies because he murdered Archer and stole his property. Thus, there is no moral prohibition on Calvin killing Bob and taking the property from him. With Archer and Bob both dead and Calvin the last sentient being on the planet, Calvin is now the de facto owner of the property. But unlike Bob in the first case, Calvin is also the de jure property owner because he has exerted effort to remove property from the control of a thief and the rightful owner died without an heir.

Another level of complexity may be added by giving Archer a rightful heir, whom we may call Delia. Let our third case proceed as the second case; Bob murders Archer and steals his land, then Calvin kills Bob to eliminate a murderer and take stolen property away from a thief. But with Archer dead, Delia is now the rightful owner of Archer’s land. However, without Calvin’s labor in killing Bob, Bob would still be occupying Delia’s territory. Thus, both Calvin and Delia have legitimate property claims. They may resolve this issue by one of the two methods available to anyone: reason or force. With reason, they may negotiate a fair settlement in which Calvin is compensated for his efforts and Delia reclaims her property minus the compensation. With force, they may fight, which will end in the first case if one kills the other. Short of this, fighting will only alter the particulars of a fair settlement or lead to the fourth case described below.

Family vs. Family

Because the moral limitations of groups are no different from the moral limitations of individuals, we may now extend these results to consider conflicts between small groups. For our fourth case, let us modify the third case by giving spouses to Calvin and Delia. Let there also be other people somewhere who can procreate with the aforementioned people, but do not otherwise involve themselves with the property concerns at hand. Suppose that Calvin and Delia do not resolve their issue, and Calvin continually occupies the property. Calvin and Delia each have offspring, then several generations pass such that Calvin and Delia are long dead. The descendants of Delia wish to reclaim their ancestral homeland from the descendants of Calvin. But do they have the right to do so? Calvin and his descendants have spent generations occupying and laboring upon the land, thus continually demonstrating and renewing their property rights. Delia and her descendants have not. One might argue that an injustice was done to Delia by Calvin, but the responsibility for crimes dies with the people who commit the crimes, and debts do not rightfully pass from one generation to another. This is because the descendants were not involved in the disputes between their ancestors, being as yet unborn. Therefore, they are not responsible for any wrongdoing that may have occurred, being non-actors in the disputes of their ancestors. The answer, then, is that the descendants of Calvin are now the rightful owners and the descendants of Delia have lost through abandonment the claim that Delia once had.

Man vs. Society and Family vs. Society

Next, let us consider issues that may arise when a single person has a property conflict with a large group of people. Though it is not a priori true that a single person will always be overpowered by a group, this is the historical norm, and it has occurred with sufficient frequency to take this as a given for our analysis. For our fifth case, let us reconsider the first case, only now Bob is replaced by a society. Let us call them the Bobarians. The morality of the situation does not change; if the Bobarians physically remove Archer and occupy his land, then the Bobarians who occupy the land are guilty of robbery and possessing stolen property while those who willfully aid them in doing so are accessories to these crimes. If the Bobarians demand that Archer obey their commands and pay them tribute, then they are guilty of extortion. Archer has a right to use any means necessary to reclaim his liberty and property, however unlikely to succeed these efforts may be. If the Bobarians kill Archer either during their conquest or afterward, then those who kill him are guilty of murder and robbery. But if Archer is dead without an heir, and there exists no other group of people capable of holding the Bobarians accountable for their crimes, then the Bobarian conquest of Archer’s property is valid de facto even though it is illegitimate de jure.

For our sixth case, suppose that Archer does have surviving heirs who wish to take back the property which has been stolen from them by the Bobarians. All of these Archerians have been wronged by the Bobarians, and thus have a right to reclaim the stolen property. But just as before, this needs to occur within the lifetimes of the conquerors and their supporters because descendants are not responsible for the crimes of their ancestors. Note if the Archerians had a timeless right to return to their ancestral lands or collect reparations from the Bobarians, it would encourage the Bobarians to finish exterminating them in order to prevent an effort to retake the land in future. A standard which encourages mass murder is questionable, to say the least.

Society vs. Society

The last set of issues to consider concern conflicts between societies. For our seventh case, let us consider what role might be played by another group who wish to hold conquerors responsible for their murder and thievery. Let us call them the Calvinites, after the role of Calvin discussed earlier. Suppose they witness the Bobarians kill Archer and all of his relatives to take their lands, as in the fifth case. What may the Calvinites rightly do? Of course, they may denounce the conquest and engage in social and economic ostracism of the Bobarians. But this is hardly sufficient punishment for the Bobarian aggression, nor does it do anything to deprive criminals of their ill-gotten gains. As per the second case, there is no moral prohibition on the Calvinites physically removing the Bobarians from the former Archerian lands by any means necessary. All Bobarians who took part in the conquest or aided the effort are fair targets for defensive force, and any innocent shields killed in the process are acceptable losses. Should the Calvinites succeed in removing the Bobarians, they become both the factual and rightful owners through their labors of justice.

For our eighth case, let us modify the seventh case by having some Archerians survive the Bobarian assault. With many Archerians dead and the rest in exile, the Calvinites intervene. The Calvinites succeed in removing the Bobarians from the Archerian homeland. The Archerians seek to return to their land. As in the third case, the surviving Archerians can come to terms with the Calvinites to resettle their lands and compensate them for their efforts in removing the Bobarians, try to remove the Calvinites by force, or let the Calvinites have the land and go somewhere else. A war between the Archerians and Calvinites will only result in alternate terms of negotiation or the Archerians leaving unless one side completely exterminates the other. If the Archerians leave and the Calvinites stay for several generations such that the original disputants die off, then as per the fourth case, the Archerians lose the right to return because the Calvinites now have the legitimate property claim.

The ninth and most important case to consider in terms of real-world occurrence is that of incomplete conquest, in which a conqueror does not exile or exterminate a native population, but instead conquers them for the purpose of ruling over them. Suppose the Bobarians seek not after an Archerian genocide, but only to annex them into the Bobarian empire. Of course, the Archerians have every right to resist their new rulers; there is not even the illusion of consent of the governed in such a case. But unlike the cases discussed above, a state apparatus initiates the use of force for as long as it operates. Whereas a forced exile or extermination is a crime typically done by one generation of people, a long-term occupation for the purpose of collecting taxes and/or breeding out the natives over the course of generations is a continuing criminal activity. In such a case, the Bobarian occupation will never become just and the Archerians will always have the right to declare independence and remove them. This only becomes difficult to resolve to the extent that Bobarians intermarry with Archerians and produce mixed offspring, but the historical norm is that cultural and genetic vestiges of an occupation remain with a people long after they declare independence from and remove an occupier. After all, the individuals born of such conditions cannot help their lot, the actions of particular individuals are not necessarily representative of the state apparatus, and carefully excising such a cultural and genetic legacy is generally impossible without committing more acts of aggression.

Conclusions

Through application of these nine cases to real-world circumstances, one can theoretically resolve most of the property disputes between population groups, however unlikely the disputants may be to accept these results. What cannot be justified through these examples, however, are the interventions of the state concerning instances of conquest. Any good that a state may do by punishing conquerors is fruit of a poisoned tree, for the state acts as a conqueror over its own people, extorting them for resources and demanding obedience to its edicts. Instead, this is an appropriate role for individuals and private defense agencies who may free oppressed peoples and take payment either in monetary terms or through property claims over territory that has been conquered and liberated from occupation. The libertarian must be wary of state efforts to imitate the market by hiring private contractors or issuing letters of marque and reprisal for the purpose of bringing conquerors to justice.

There is a legal maxim that justice delayed is justice denied, and the libertarian analysis of conquest shows that this is doubly true; not only does a delay in the provision of justice allow injustice to persist, but given enough time, it renders the plaintiff’s grievances invalid. This amounts to a natural statute of limitations and statute of repose, meaning that the arbitrary and capricious statutes of limitations and repose imposed by statist legal systems is generally unnecessary, at least with regard to the property crimes and crimes against the person involved in conquest. In this sense, the libertarian theory of conquest naturally stresses the urgency of seeking justice in a way that statist legal systems can only attempt to simulate.

Another legal expression reinforced by this analysis is that possession is nine-tenths of the law. The idea is that the current possessor or occupant of physical property is assumed to be the owner unless a stronger ownership claim by someone else is proven. This must be the case because the only other consistent position would be to assume that the current possessor or occupant of physical property is not the owner, which quickly leads to absurdity as claims rush in from people who wish to take all manner of property and continually redistribute it ad infinitum.

Finally, one might misconstrue the above analysis to say that libertarian theory defends the idea that might makes right. But in order to believe this, one must ignore all of the arguments in favor of defensive force to separate conquerors from the spoils they have taken. Rather, the libertarian theory regarding conquest recognizes and respects the fact that might makes outcomes. This is a fact which will never change; the only thing that changes throughout space and time is who will have might and how much power disparity will exist between opponents.

Fake Libertarianism Revisited

A significant portion of my work consists of critiquing arguments, decisions, and statements made by other people. But sometimes, the lens of examination is best turned inward to correct one’s own missteps. Such is the case for an article I wrote three years ago about the nature of fake libertarianism. In retrospect, I failed to accurately present the structure of libertarian philosophy, and thus erroneously defined what it means to be a fake libertarian. Let us see what is wrong with my former case and make the necessary corrections.

Just as before, we must first have proper definitions for “libertarianism” and “fake” in order to consider the issue of fake libertarianism. Libertarianism is the philosophical position that the proper use of force is always defensive in nature. Initiating the use of force is never justifiable, while using force to defend against someone who initiates the use of force is always justifiable. A fake adherent of a position is either a person who claims to believe in that position while explicitly rejecting the premises of that position or their logical conclusions, or a person who misrepresents the premises of that position. Note that this does not compel action; a person is free to choose not to respond to initiated force with defensive force. Nor does this constrain one’s entire ideology to a single position; one may believe in additional premises beyond a certain position which are not in contradiction with that position without being a fake adherent, but to falsely represent such premises as being contained within that position does make one a fake adherent.

In my previous attempt, I argued that a fake libertarian is a person who claims to be a libertarian but does one or more of the following:

  1. Supports initiating the use of force for any reason;
  2. Rejects a logical conclusion of the non-aggression principle;
  3. Claims that another principle can trump the non-aggression principle;
  4. Claims that libertarianism contains something that it does not contain, or vice versa.

Points (1) and (4) are sound, but points (2) and (3) require some revision. The non-aggression principle is neither an axiom nor the basis of libertarian theory, as my previous attempt would suggest. The starting point for all of libertarian ethics is self-ownership; that each person has a right to exclusive control of one’s physical body and full responsibility for actions committed with said control. Note that in order to argue against self-ownership, one must exercise exclusive control of one’s physical body for the purpose of communication. This results in a performative contradiction because the content of the argument is at odds with the act of making the argument. By the laws of excluded middle and non-contradiction, self-ownership must be true because it must be either true or false, and any argument that self-ownership is false is false by contradiction.

Because each person has a right to exclusive control over one’s own body, it is wrong for one person to initiate interference with another person’s exclusive control over their body without that person’s consent. It is clear that self-ownership trumps the non-aggression principle on the grounds that the independent principle overrules the dependent principle. One may also reject a logical conclusion of the non-aggression principle if doing so is necessary in order to accept a logical conclusion of self-ownership.

The above would be true but trivial if there were no cases in which the non-aggression principle came into conflict with principles of higher rank, so let us consider three such cases.

Innocent Shields

Strict adherence to the non-aggression principle would suggest that innocent shields held captive by an aggressor are non-aggressors and that harming them is immoral. But if this is true, then anyone who is being more harmfully victimized by the aggressor is doomed. Additionally, considering an aggressor who hides behind innocent shields to be an illegitimate target would provide a means for an aggressor to escape punishment and restitution. Another means of dealing with such a situation is provided by Walter Block’s concept of negative homesteading. To quote Block,

“A grabs B to use as a shield; A forces B to stand in front of him, and compels him to walk wherever A wishes. A then hunts C in order to murder the latter by shooting him. C also has a gun. Is it legally permissible for C to shoot at A in self defense under libertarian law?

[…]

In ordinary homesteading, or what we must now call positive homesteading to distinguish it from this newly introduced variety, it is the first person upon the scene who mixes his labor with the land or natural resource who comes away with the property rights in question. It is the first man who farms a plot of land, who becomes the rightful owner. A similar procedure applies to negative homesteading, only here what gets to be ‘owned’ is a negative, not a positive. This concept refers to some sort of unhappiness, not a benefit such as owning land. The ownership of misery, as it were, must stay with its first victim, according to this principle. He cannot legitimately pass it onto anyone else without the latter’s permission.”

The homesteading principle is a direct corollary of self-ownership, just like the non-aggression principle. This gives them equal standing in libertarian philosophy, meaning that a conflict between the two must not give the non-aggression principle supremacy over the homesteading principle or vice versa.

To use the theory of negative homesteading, we must identify the first homesteader of the misery. In Block’s example, this is B. It is impermissible for B to transfer this misery to C. Thus, the theory of negative homesteading permits C to shoot A and risk hitting B even though a strict view of the non-aggression principle would not. None of this is to say that concern for the innocent shield should be disregarded; only that if an aggressor is too dangerous to ignore and it is impossible to subdue the aggressor without harming innocent shields, then the innocent shields are expendable in order to reduce the overall amount of aggression committed.

Reecean Proviso

The theoretical basis for private property rights in libertarian theory also starts with self-ownership. Because one is responsible for one’s actions, one gains an ownership claim over one’s improvements upon natural resources. It is impossible to own the improvements without owning the resources themselves, so property rights over external objects in a state of nature are established through mixing one’s labor with them. As property rights are established and maintained by exercising self-ownership, they are dependent upon self-ownership. As with non-aggression, self-ownership overrules private property in external objects because that which is dependent is subordinate to that upon which it is dependent.

Next, let us note that all sentient beings are equal in their self-ownership, in that all sentient beings have property in their own physical bodies through exclusive direct control over them. Although the nature of their bodies and minds will almost certainly result in different beings appropriating different quantities of external resources and in different beings having more or less capability to defend those resources from challengers in practice, the theoretical strength of a particular property right over an external object by one sentient being is equivalent to the strength of another particular property right over another external object by another sentient being. Applying this to the fact that self-ownership stands above private property in external objects, we get the result that the self-ownership of one sentient being stands above the private property rights in external objects of another sentient being.

A strict view of the non-aggression principle would not allow any appropriation of another person’s private property without their permission, but a case in which self-ownership is in conflict with private property could allow for this. Although this is subject to so many caveats in practice that the appropriate lifeboat scenario may never arise, the theoretical possibility for a situation in which a person is justified to appropriate a small amount of resources from someone else’s property in order to stay alive does exist.

Unrepentant Aggressors and Agency

Because libertarian theory is a logical construct, it is subject to logic in the form of rationality and consistency. For private property rights, the non-aggression principle, or indeed even self-ownership, to apply to a person who has violated another person’s rights of the same kind is inconsistent. As such, a thief has no standing to claim property rights, an aggressor has no standing to claim non-aggression, and a murderer has no standing to claim self-ownership until restitution is made for their crimes. In the latter case, restitution is impossible because a murder victim cannot be made whole. An unrepentant aggressor may be attacked in ways which would violate the non-aggression principle if done to a non-aggressor because the aggressor’s actions demonstrate a rejection of the non-aggression principle.

One might protest that a bystander lacks agency in a matter between an aggressor and a victim, but the concept of agency has been shaped in a world dominated by states. Thus, private citizens are discouraged (and sometimes prohibited) not to interfere in certain matters between other people because the state claims sole authority to resolve such matters. In a society organized in accordance with libertarian theory, there is no such monopoly on the creation and enforcement of laws, or on the final arbitration of disputes. The concept of agency in a libertarian social order would likely impose fewer limits on an individual’s conduct, thus leaving one free to use force against unrepentant aggressors even if not in an immediate self-defense situation. The possibility of becoming an outlaw subject to the every whim of anyone who cares to attack an unrepentant aggressor presents a strong deterrent against committing acts of aggression.

Strategic Thinking

A separate but related problem is that of libertarian purists denying the context of a situation and refusing to consider less than perfect alternatives. There are situations in which an option which adheres to libertarian principles is not politically viable and libertarians are not willing to do what would be necessary to make such an option viable. In such cases, there will be several options and all of them will involve acts of aggression. Navigating these situations requires us to figure out either which option is most likely to result in the least amount of aggression or which option is most likely to move society closer to a libertarian social order. Advocating for one such option over the others, or ranking them from best to worst, does not constitute an endorsement of aggression because one is not choosing an aggressive option as an ideal or because one wants to, but as a least evil and because there is no good option.

Parts Unchanged

The definition of what constitutes a fake libertarian was in need of correction, but the when, where, and why remain as they were. Fake libertarianism is still a widespread and growing problem. As before, the reasons for being a fake libertarian are to gain recognition in a smaller field of competitors instead of trying to compete directly with more powerful establishment commentators, to destroy the libertarian movement from within by being an entryist, and to gain capital through false representation of something valuable.

Taking a slightly softer tone with some of those identified instead of calling them fakes and running them off may be sound strategical advice in some cases, especially with respect to the anarchist-minarchist debate. But any movement that wishes to take political power for any purpose, including the destruction of said power, must beware of holiness spirals. Libertarian groups have a twofold problem in this regard; that of strictest adherence to libertarian principles and that of leftist infiltration. Those who reduce their circle of allies to only the most ardent libertarians will lack the numbers to accomplish anything. Meanwhile, leftists who infiltrate libertarian circles and fill them with progressive nonsense can manage to run off real libertarians, which helps to explain the growth of the alt-right movement. Both of these problems are dangerous to the goal of liberty and must be countered whenever they present themselves.

Conclusion

There is no better way to conclude than by restating the closing paragraph from the original piece:

“Just as counterfeiters do not make copies of worthless banknotes and forgers do not falsify meaningless signatures, political charlatans do not pretend to hold a position if doing so has no potential benefit. Thus, true libertarians should take heart. The very fact that there are fake libertarians means that true libertarianism is worth something, and that defending it against those who would falsely assume it and attempt to destroy it is worth doing.”

A Libertarian Social Order In The Garden

Since the dawn of civilization, humans have engaged in agriculture. For millennia, gardens have been a source of nourishment, recreation, and social status. As such, many metaphors have been developed which refer to agricultural concepts to make a point about another subject. Examples can be found in both religious and secular texts from every culture. Therefore, it is only fitting that such a metaphor be made for libertarian philosophy in practice. Let us see how a garden can serve as a metaphor for a libertarian social order, as well as what insights this metaphor can provide for the creation and maintenance of such an order.

The Garden Kingdom

A garden is created and maintained by a gardener. The gardener rules the garden as an absolute monarch rules his kingdom, as there is no power within its bounds to challenge the gardener’s authority. The legitimacy of his rule is established like that of any private property owner; he mixes his labor with unowned natural resources to gain ownership of the improvements made. Ownership of the improvements is impossible without ownership of the things improved, so the gardener’s labor entitles him to the land of the garden and everything growing in it. He uses his sole dominion as he sees fit, determining which crops to plant where, which plants may remain where they are, which must be relocated, and which must be removed. He chooses which insects or other animals to allow to remain, which to import, and which to remove. All plants (and other lifeforms) that remain within the garden do so at the pleasure of the gardener, and they serve his needs and wants in exchange for his merciful provision and protection.

A kingdom is not worth much without its productive citizenry, upon whose production the king relies for sustenance. For the gardener, this role is fulfilled by fruit and vegetable plants, as well as pollinating insects. The gardener sows their seeds in the correct season and provides them with good soil so that they may be successful. This is necessary because unlike humans, the crops cannot optimally manage their own affairs and stand in need of a central planner. If the rain should be insufficient, the gardener irrigates the crops. If the plants need fertilizer, the gardener gives them some. If the plants are attacked, the gardener defends them. If the plants produce too much foliage and not enough crops, the gardener prunes them. If the plants drop seeds in an improper place, the gardener cleans up after them. If the plants cross-pollinate against the gardener’s wishes, he separates them further. In time, the plants will feed the gardener in exchange for his good stewardship of them.

Unproductive Citizens, Immigrants, and Threats

But sometimes, the citizenry are not productive. In some cases, this is because their particular environments are not conducive to their well-being. Some plants fare poorly in one part of the garden but would do well in another. But unlike human citizens in a kingdom, the plants cannot move themselves; the gardener must dig them out and move them. And as the gardener has legitimate powers of eminent domain as well as subjects without any human rights, there is nothing wrong with moving them. Other plants may not produce in the garden’s climate, no matter their location within it. If this happens, the gardener may choose not to replant them and instead buy seeds for new crops, just as a king might allow in immigrant workers to perform necessary tasks which no current citizens can perform. Should the new crops prove successful, the gardener may naturalize these new crops as permanent residents of the garden. If not, then the gardener will keep looking for a different crop to fill the void.

In other cases, the citizenry are not productive because they are under attack. Just as in human life, there are many threats to the safety of a fruit or vegetable plant. A kingdom will contain a criminal element which preys upon the productive citizenry. If a king has a duty, it is to safeguard the citizens from attack. The domestic criminals and parasites of the garden consist of weeds and some animals. Weeds deprive the crops of the nutrients that they need in order to thrive. Left unchecked, they can crowd out the crops, depriving them of sunlight. Some will even wrap around crop plants and strangle them. Rodents and other wild animals will eat the crops and sometimes even the entire crop plants, depriving the gardener of his just rewards.

A kingdom must also be guarded from external foes, as foreign invaders and terrorists can be just as devastating as the domestic criminal element should they be allowed to immigrate into the garden. Harmful insects play this part in the garden. They typically live somewhere outside the garden, but enter to prey upon the crops. They damage fruits and vegetables, destroy leaves, and even chew through stems to destroy entire plants. Left unchecked, they can reduce a gardener’s harvest to zero and leave behind eggs which will hatch new insects to do the same to a future year’s crop.

Defending The Realm

These aggressors are not amenable to any sort of reasoning. One does not ask a weed not to grow or a beetle not to eat, as it is against their inherent nature. The only way to deal with such a criminal element is through physical removal, and escalating to a full extermination is frequently necessary. Fortunately, the gardener has many tools at his disposal to deal with such problems, just as a king has guards, sheriffs, and armies. Weeds may be pulled, hoed, tilled, or sprayed with herbicides. Rodents can be handled with traps or by their natural predators, such as cats and snakes. Larger animals that attack the crops, such as deer, can be shot to feed the gardener as well as eliminate a threat to the garden. Insects can be thwarted by natural predators, traps, or a wide variety of insecticides.

Where are such plants and animals to go, if they may not stay in the garden? It is not the gardener’s concern. They are threats to his property, the fruits of his labor, and perhaps even his livelihood and survival. He is justified in using any means necessary to eliminate the threat and defend his property.

In the worst cases, insects may damage a plant beyond repair while marking it with chemicals that signal more insects to come. When this happens, the gardener must make a sacrifice for the greater good and remove that plant from the garden. Allowing that plant to remain and bring pestilence to the healthy plants of the garden will only cause further damage.

Collateral Damage

Like any tools, those that the gardener uses to defend the garden can be used in such a way that causes collateral damage. An errant blow from a hoe can destroy a crop plant, as can a gust of wind that blows herbicide where it should not go. Insecticides can kill bees as well as harmful insects. Fortunately, such mishaps only negatively affect the gardener’s harvest, and do little other noticeable damage. Although crop lives and bee lives matter to a competent gardener, no gardener has to worry about being retaliated against by the crops or bees in any meaningful way should he accidentally slaughter a few. This is partly because of the nature of non-sentient lifeforms, and partly because a gardener has none of the concerns about popular support that a democratic ruler has.

Conclusion

A garden is not a perfect metaphor for a libertarian social order, as none of the residents of the garden are sentient beings on par with the gardener. But this metaphor does illustrate the creation and maintenance of a libertarian social order according to individual preferences in a simplistic case of black and white morality. This example can be expanded and filled in with nuances as needed to extend it to tenants in a covenant community, which are the building blocks of a flourishing libertarian society.

The Libertarian Case For Private Nuclear Weapons

Whenever statists push for restrictions on private ownership of firearms and libertarians defend the right to keep and bear arms, some statists will attempt a reductio ad absurdum in the form of asking libertarians whether it should be permissible for private individuals to own nuclear weapons. The libertarians will usually back down, after which their inconsistency allows the statist to win the argument. But there is no need to do this. Let us explore why private ownership of nuclear weapons not only fails as a reductio ad absurdum in the gun control debate, but is actually essential for the creation and maintenance of a stateless society, along with other benefits.

Background

The starting point for all of libertarian ethics is self-ownership, that each person has a right to exclusive control of one’s physical body and full responsibility for actions committed with said control. Note that in order to argue against self-ownership, one must exercise exclusive control of one’s physical body for the purpose of communication. This results in a performative contradiction because the content of the argument is at odds with the act of making the argument. By the laws of excluded middle and non-contradiction, self-ownership must be true because it must be either true or false, and any argument that self-ownership is false is false by contradiction.

Because each person has a right to exclusive control of one’s physical body, it is wrong for one person to initiate interference with another person’s exclusive control of their physical body without their consent. This is how the non-aggression principle is derived from self-ownership. Because each person has full responsibility for the actions that one commits with one’s physical body, one may gain property rights in external objects by laboring upon unowned natural resources, and one owes restitution for any acts of aggression that one commits against other people or their property. But because the non-aggression principle and private property rights are derived from self-ownership, they are dependent upon it. That which is dependent cannot overrule that upon which it is dependent, therefore self-ownership takes primacy if there should be a conflict between the self-ownership of one person and the external private property rights of another person. Furthermore, the theory of negative homesteading allows one to harm innocent shields if one is under attack and it is impossible to defend oneself without doing so.

Theoretical Objections Rebutted

Now that a logical framework is established, let us consider the issue of private ownership of nuclear weapons. Note that there are two cases which must be considered concurrently; that of of private ownership versus state control, and that of private ownership versus nuclear-free. Following the essentials of libertarian ethics, one may rightfully own anything if one creates it by laboring upon unowned natural resources. Furthermore, one may trade or gift anything one owns because an inability to do so would not constitute exclusive control. The burden upon the opponent of private nuclear weapon ownership is to show that mere possession of such a device inherently constitutes an act of aggression against people and/or their property, that state control is superior to private control, or that a free society would not have such weapons in the first place. Many arguments have been made to support this position, so let us examine them.

First, there is the argument that nuclear weapons were created through state programs and would not exist otherwise. This response attempts to deal purely in theory while remaining devoid of any context or practical application, all while claiming an astounding level of prescience concerning a counterfactual world in which no states survived into the 20th century. In reality, science and technology march on regardless of government involvement, albeit along a different path. While one may reasonably assume that a stateless world would have no Manhattan Project, it is entirely possible that the economic growth possible in the absence of statism could have funded scientific research and technological innovation to such an extent that nuclear technology could have been discovered earlier. It is quite implausible that no one would have discovered the possibility of nuclear weapons and tested it by experiment by now, and all but impossible that this would never become an issue in the future. A variant of this argument is that nuclear weapons are too expensive for individuals to develop, purchase, or maintain. This is also highly suspect because wealth levels tend to increase over time, meaning nuclear weapons (and everything else) will be more affordable in the future, if they are not affordable now (which is doubtful).

Second, some will argue that unlike small arms, a nuclear weapon is always pointed at someone. The implication is that such a device cannot be stored safely, and so must not be stored at all. The problem with this argument is that it confuses risk with aggression, accident with intent, and incompetence with malice. This argument also demonstrates a misunderstanding of the construction of nuclear weapons; like small arms, they may be stored in such a condition as to be unavailable for immediate use. We also cannot take this argument to its logical conclusion, as doing so would prohibit any activity which potentially endangers someone, such as flying aircraft or spacecraft, transporting hazardous materials by rail or pipeline, or even driving cars. However, there is one legitimate concern raised by this argument; that of radiation pollution from improper storage. But a free society could deal with radiation pollution by much the same procedure as it would use for any other form of air or water pollution.

Third, there is the argument that nuclear weapons necessarily kill innocent people because of their area and duration of effect. This argument, like the first, requires an impossible kind of knowledge, as no one may know precisely what area and duration of effect that a weapon may need in order to stop some future aggressor. Without such knowledge, this argument would set an arbitrary and capricious limit upon weapon ownership, as every weapon has some area and duration of effect. Furthermore, this argument is a straw man because even if this argument were completely valid, it would only prohibit the use of nuclear weapons, not their manufacture, possession, or trade. This is because the mere possession of an object cannot constitute aggression; only the use or threat of use in a manner which may harm innocent people and property constitutes aggression. Finally, under the theory of negative homesteading, killing innocent people can be acceptable if they are being used as human shields by an aggressor and it is impossible to subdue the aggressor without harming the human shields.

Fourth, there is the possibility that a mentally unstable person who would seek to use one in anger may acquire one. This is a serious concern, but there is no answer for it now that such weapons exist. While it is in the rational self-interest of everyone who is mentally stable to keep such munitions out of the hands of those who have a first-use policy, and it would be justified to use any means necessary to prevent those who have a first-use policy from obtaining and/or using nuclear weapons, there can be no guarantee that this disaster will not happen. A notable subset of this problem is that of the nuclear extortionist who says, “I want X or that city over there gets it!” But everyone who understands economics or psychology knows that subsidized behavior will become more frequent, resulting in more extortionists and more payments. We can therefore expect that the proper response of extermination of anyone who makes such threats will be used. Even if this results in a few uses of nuclear weapons, it is far better than the alternative. Furthermore, this scenario does not depend on nuclear weapons, as conventional explosives can easily be scaled up to sufficient size to cause this problem.

Fifth, there is the argument that technology will march on and render nuclear weapons obsolete. This argument does not address the issue because whatever technology would replace nuclear fission and fusion (e.g. matter-antimatter reactors) would have even more destructive potential if weaponized.

Sixth, there is the argument that nuclear weapons exist on a scale that makes mass murder and destruction too easy. But this can be true of any increase in firepower. (And who shall draw the line between what is too easy and what is not?) As military technology marches on and increases in scale, so does peaceful technology. That which would have eliminated an ancient tribe of hunter-gatherers may go almost unnoticed in a modern community, and a nuclear explosion may go almost unnoticed in an interstellar civilization. That which seems too powerful today may be laughable in the future.

Finally, there is the argument that a nuclear weapon is too powerful for a civilian to own, and thus the state should maintain control of them. But states created this issue in the first place (at least in our timeline), immunize themselves from responsibility for their pollution, suffer no serious consequences from threatening innocent people with nuclear weapons, are harder to stop from delivering nuclear weapons to those with a first-use policy, and are subject to the same mutually assured destruction as would be a private owner. As such, state control is actually the greater of two evils given that nuclear weapons exist. Note that in order to be consistent, one would also have to oppose private ownership of non-nuclear devices of equal or greater strength, even if used for peaceful purposes such as mining. As for the level of strength, this argument would set another arbitrary and capricious limit upon weapon ownership at the minimum possible yield for a nuclear warhead.

The Positive Case

With the theoretical arguments against private nuclear weapons rebutted, let us consider the good that private nuclear weapon ownership can do. First, nuclear weapons have a history of preventing total warfare, the most destructive statist activity. Before nuclear weapons were invented, rulers could invade other countries with little chance of being personally affected by the violence. When only the United States had nuclear weapons, Truman was able to use them against Hiroshima and Nagasaki with impunity. But once the Soviets exploded RDS-1 on August 29, 1949, the monopoly on nuclear capability was lost, never to be regained. The advent of mutually assured destruction meant that anyone who dared to use nuclear weapons could expect to be hit with them in return in a matter of hours (minutes with modern delivery systems). While the ruling classes used the funds they extorted from their populations to build shelters to survive a nuclear exchange, they knew that such survival would not truly be life; they would have no useful territory to control and no people to rule upon emerging from their bunkers. As such, the creation of nuclear weapons has led to a more peaceful world, at least in terms of major wars between world powers. It stands to reason that the acquisition of nuclear weapons by private individuals or defense agencies would take all-out warfare off the table for them as well, as the incentives which apply concerning nuclear-armed states also apply concerning nuclear-armed private individuals or defense agencies.

As a corollary of the first point, possessing nuclear weapons allows one to spend less resources on maintaining conventional military forces, thus freeing up resources to be used for other purposes. Just as the United States has generally lowered its military budget as a percent of GDP since nuclear weapons were invented (with a few exceptions for wars), a private defense agency can also lower costs by maintaining a small number of nuclear missiles rather than a much more numerous conventional arsenal. This also means that military equipment providers will have less influence over the society than they otherwise would, thus lessening the likelihood that they can start a conflict for their own profiteering.

Third, the transition from statism to anarcho-capitalism will almost certainly not occur overnight. There will almost certainly be a period of time in which some parts of the world still have governments while other parts of the world are anarchist control zones, regardless of the means used to circumvent or abolish existing states. When this happens, the stateless people will have economic advantages over those who live under the burden of government currency debasement, regulation, and taxation. Eventually, this will lead to conflict as rulers blame the anarcho-capitalists for luring away people and resources that governments need to continue functioning. States in this time period will be dealing with an existential threat of a sort that they have not faced in time memorial and to which they have no answers other than to abolish themselves or use violence. Those in power who are unwilling to give up violent dominion and live peacefully with their fellow human beings could consider this situation worthy of using nuclear weapons, and if the anarcho-capitalists wish to survive and win this conflict, they will need to wield equal or greater firepower themselves. In this sense, private ownership of nuclear weapons will be vitally important for the effort to abolish statism.

Fourth, private nuclear weapons have peaceful uses, such as mining, excavation, asteroid deflection, and propulsion. Looking forward, humanity must form a space-faring civilization if it is to survive long-term, and it is in this final frontier that nuclear devices have their utmost potential. Nuclear weapons are capable of providing a powerful defense against an asteroid which could threaten all life on a planet, whether they are used to alter its course or to blast it into pieces which are sufficiently small to burn up in the atmosphere before impacting the surface. Short of destroying or deflecting such an object, nuclear weapons could be used to excavate asteroids for the purpose of mining their interiors for valuable metals which are not commonly found elsewhere. Nuclear weapons can also be useful for getting to such an asteroid, as well as more general space travel. A series of nuclear explosions detonated behind a ship designed to absorb the impact and be propelled by it is the most primitive effective method of achieving the velocities needed to make long-distance space travel feasible.

Practical Objections Rebutted

Although there is a strong positive case for private nuclear weapons, some people still have difficulties with the practical aspects of their ownership. As such, it is necessary to consider some practical objections to their ownership.

First, there is the argument that in a stateless society, private individuals or defense agencies would not have an incentive to have nuclear weapons. But no nuclear-armed state has ever been invaded by a foreign power, and this cannot be said of any other class of weapon. This perfect track record is an extremely powerful incentive for a private individual or defense agency who seeks defense against invasion. Private defense agencies would also realize economic benefits from maintaining a nuclear deterrent versus maintaining a much more numerous conventional military force to achieve the same purpose.

Second, there is the argument that regardless of the theoretical soundness of private nuclear weapon ownership, people will view nuclear weapon owners with suspicion and seek to destroy them in order to eliminate the potential danger posed by them. The problem with such an effort is that aside from it being aggression against people and property, it greatly increases the likelihood of a nuclear weapon being used, especially if its owner is vastly outgunned or has no other weapons available. Note that assassination markets are not an answer, as a nuclear weapon owner could respond to the possibility of assassination by connecting the launch mechanism to one’s vital signs and programming the weapon to activate if one’s vital signs terminate in such a way as to indicate murder. As such, it makes far more sense to only target nuclear weapon owners who actually make threats of their use.

Finally, there is the concern that a person or defense agency in possession of a nuclear weapon can make demands of everyone else because of their power. This concern is a variant of the mentally unstable person who would seek to use one in anger discussed earlier, and is subject to the same rebuttal as well as the threat of mutually assured destruction.

Conclusion

Socrates once said,

“I only wish that ordinary people had an unlimited capacity for doing harm; then they might have an unlimited power for doing good.”

It is hard to imagine a greater embodiment of this idea at present than privately owned nuclear weapons. The logical case for their ownership is clear, and the objections in favor of either state control or complete elimination do not withstand scrutiny. While the prospect can be terrifying, the alternative is even worse, as the only way to prevent private nuclear weapon ownership from becoming a reality someday is to endure statism in perpetuity while bringing all innovation to a complete standstill. This would eventually result in a purposefully engineered Malthusian catastrophe on par with the most gruesome horror fiction, and the death toll would certainly be greater than that of a society which embraces freedom and nuclear technology. Fortunately, we will escape that fate because those who accept nuclear weapons for their legitimate uses will have an advantage over those who do not. In the words of Foo Quuxman,

“The ones who use it will inherit the stars. Those who don’t will be left to scratch out an existence on a single rock until something wipes it clean.”

On Air Ownership and Pollution

The question of how to deal with air pollution is frequently asked of libertarian theorists, as it is an issue which has been dominated by governments for far longer than a human lifetime. Accordingly, it may be difficult to transition toward a free market alternative to government environmental regulations. Several other attempts have been made to address this issue, but let us tackle the problem rigorously from first principles.

The starting point for all of libertarian ethics is self-ownership, that each person has a right to exclusive control of one’s physical body and full responsibility for actions committed with said control. Note that in order to argue against self-ownership, one must exercise exclusive control of one’s physical body for the purpose of communication. This results in a performative contradiction because the content of the argument is at odds with the act of making the argument. By the laws of excluded middle and non-contradiction, self-ownership must be true because it must be either true or false, and any argument that self-ownership is false is false by contradiction.

Because each person has a right to exclusive control of one’s physical body, it is wrong for one person to interfere with another person’s exclusive control of their physical body without their consent. This is how the non-aggression principle is derived from self-ownership. Because each person has full responsibility for the actions that one commits with one’s physical body, one may gain property rights in external objects by laboring upon unowned natural resources, and one owes restitution for any acts of aggression that one commits against other people or their property. But because the non-aggression principle and private property rights are derived from self-ownership, they are dependent upon it. That which is dependent cannot overrule that upon which it is dependent, therefore self-ownership takes primacy if there should be a conflict between the self-ownership of one person and the external private property rights of another person.

Now that a logical framework is established, let us consider the problem of air pollution through this framework. The essential fact about air pollution is that the polluter adds harmful substances to the air against the wishes of those who are exposed to it, either through inhalation, external contact, or ground or water pollution as the contaminants are left behind once polluted air has passed through an area. When such exposure occurs, the pollution is not only an act of aggression against private property, but against liberty and life as well in the event of illness or death caused by the pollutants. This means that a polluter may be guilty not only of damaging property, but of assault or homicide.

But what about the air itself? We can deduce what it means to own the air from what it means to own something in general, which has already been discussed. Given the above theoretical framework, a person may own land, but the air above the land is not labored upon and is not static upon the property. (One could gain ownership of some air by performing some labor upon it, such as enclosing in a container or pressurizing it therein, but this is mostly a separate issue from that of air pollution.) But a person must have some reasonable clearance above the land to be able to move freely upon it and generally enjoy the private property right in it. This clearance might also allow one to hunt game birds and to be free from spy drones flown by other people, but could not extend high enough to impede commercial air or space travel overhead. The extent of this clearance is impossible to determine a priori and must be dealt with on a case-by-case basis through negotiations and contracts.

At this point, one may be led to think that far from the leftist caricature that libertarianism is unconcerned with environmental pollution, this framework is actually too sensitive to pollution, as any amount of air pollution could be considered an act of aggression. If true, this would require a radical reorganization of society so as to eliminate all emissions. But this is where the Reecean proviso rescues libertarianism from a practically untenable position. Because self-ownership overrules external property rights, pollution that is required for survival is permissible. As Friedman points out[1],

“Carbon dioxide is a pollutant. It is also an end product of human metabolism. If I have no right to impose a single molecule of pollution on anyone else’s property, then I must get the permission of all my neighbors to breathe. Unless I promise not to exhale.”

Another example is the burning of wood in one’s fireplace or campsite to prevent hypothermia, cook food, sanitize drinking water, etc., as disallowing such activities (or their more modern equivalent of burning fossil fuels to generate electricity and heat) would result in a massive depopulation, which in turn would destroy the institutions of private property. But the Reecean proviso cannot defend non-essential pollution, such as that produced by modern transportation or tobacco smoke, as there is no self-ownership to weigh against private property rights. Fortunately, we need not alter civilization quite so radically, as there are other theoretical considerations which are somewhat more permissive.

The distinction between non-harm, non-violence, and non-aggression means that the maxim of ‘no victim means no crime’ is an oversimplification; the more accurate statement is that no victim means no restitution can be owed and no punishment beyond what is necessary to stop acts of aggression should be meted out. This distinction allows us to differentiate[2] between noticeable trespasses and unnoticeable nuisances, the latter of which are only actionable if some damage may be demonstrated. This is because a substance which cannot be noticed and does not demonstrably cause harm is functionally equivalent to being absent, and a lack of cause for restitution leaves a court with no sentence to impose.

The dispute resolution standards in use by the polluter and the pollutee also play an important role, as a different result will occur if both use a reasonable doubt standard versus a preponderance of evidence standard. Still another possibility is that the polluter will use a private court company with one standard of proof while the pollutee will use a different private court company with a different standard of proof. Such instances would need to be negotiated and contracted on a case-by-case basis, but any competent court company would be staffed by people who are aware of such problems and capable of performing such negotiations. Coase explained[3] that such negotiations will result in some level of pollution and some restitution that is satisfactory to both. Perhaps this is not ideal for nature, but it does minimize pollution levels beyond what alternatives to voluntary negotiations have produced thus far.

Another matter is that not all property claims are established at the same time. This means that it is possible for a right to pollute to be homesteaded, in that if all of the pollution generated by a property owner falls upon unowned wilderness and stays there, then anyone who establishes property in that wilderness tacitly consents to the current conditions of present and continuing pollution. Of course, another instance which would need to be negotiated and contracted on a case-by-case basis is that of a polluter ceasing operations for a time, as the newer property owners may come to expect this new, cleaner state of affairs and take action if the polluter resumes operations.

These deviations from a strict ban on air pollution still leave in place a far greater protection of the environment than do statist environmental regulations. Whereas a private owner both exercises exclusive control over a resource and may sell either the resource or stock in it, government officials cannot generally do the latter. This means that government officials lack an important economic incentive to take care of the air. A private owner of an airspace whose air becomes polluted would sue the polluter for damages and seek injunctive relief, but the Environmental Protection Agency or its state-level subsidiaries tend to block such lawsuits when filed by concerned citizens. This lack of incentive also leads governments to pollute the air, to the extent that the U.S. military is the worst polluter in the world.

It is clear that governments cannot be trusted to defend its citizens from such aggressions, but it has done worse; it has prevented free market solutions from being implemented. During the 19th century, people whose property was damaged by factory smoke took the factory owners to court, seeking relief from the pollution in the form of injunctions and damages. The government judges, realizing on which side their bread was buttered, sided with the factory owners, claiming that the “public good” of industrial progress outweighed private property rights. Legislators, also knowing who was more capable of funding their campaigns and bribing them, joined in for the polluters and against the pollutees by eliminating the option of class action lawsuits against polluters who cause damage over a large area. Rothbard recognized[4] that technology has therefore developed to produce air pollution because governments have interfered with private property rights in this area, and a society where this was far more restricted all along would have developed in a more environmentally friendly manner.

The criticism of libertarian theories of air pollution that is least addressed is that they do not effectively deal with situations in which responsibility is greatly dispersed, such as the pollution from driving automobiles leading to smog in large urban areas or places with geography that traps harmful particles. Pollution is no more acceptable if a million people produce it than if one person produces it, but the responsibility of each person becomes so small as to be unmeasurable for purposes of restitution. There is also the matter that crime consists of both an actus reus and a mens rea, and the everyday driver does not operate an automobile with the intent to harm the environment. As with individual cases, we may expect that a Coasean negotiation will occur to minimize both pollution and damages, but the major reason that theorists tend not to address this concern is that no theory can solve a problem of mass action; only a mass counter-action, such as driving less or using more environmentally friendly fuels, can solve such problems.

In closing, a libertarian approach to air pollution does not produce perfect results, but neither does anything else, and turning this problem over to the state has only produced and will only produce ecological disaster.

References:

  1. Friedman, David (1989). The Machinery of Freedom. p.168
  2. Rothbard, Murray (1982). Law, Property Rights, and Air Pollution. Cato Journal, p. 55-99
  3. Coase, Ronald (1960). The Problem of Social Cost. Journal of Law and Economics, p. 1-44
  4. Rothbard, Murray (1973). For a New Liberty: The Libertarian Manifesto. p. 317-327

Defending the Reecean Proviso

On March 7, I published an article which discusses a libertarian theory of property rights as well as a proviso thereto which covers the case of a conflict between one person’s self-ownership and another person’s private property rights in external objects. This invited a lengthy criticism by Coralyn Herenschrict in the comments section which bears addressing in the form of a point-by-point rebuttal.

Another in a long historical line of strenuous but unsuccessful attempts to undermine property rights by exception. …Attempting to turn property ownership from a fundamental human right of an individual by virtue of his interactions with the natural world into a privilege conditionally granted by other men by virtue of their state of being.

The Reecean proviso is not an effort to undermine property rights; it is an effort to examine what happens when one person’s property rights in one’s body comes into conflict with another person’s property rights in external objects. That property ownership is a fundamental right of an individual by virtue of one’s interactions with the natural world is not being questioned.

Thus, private property rights over external objects are dependent upon the property right over one’s physical body. That which is dependent cannot overrule that upon which it is dependent. Therefore, self-ownership stands above private property rights in external objects.

This conclusion makes two errors. It confuses states that must coexist both with states that must remain true and with states that have hierarchical precedence. It also confuses negative rights with positive rights.

This is not so, as we shall see.

For example, I must own myself to homestead land for that act to be valid. But once valid, it is forever valid. Regardless of if I die, sell myself into slavery, or otherwise subsequently lose ownership of myself. The dependency on my self-ownership is scoped temporally to the period in time of the act of homesteading. The dependency does not extend into the past before that period nor into the future beyond that period.

This is not entirely true. A person who loses self-ownership loses all corollaries thereof a fortiori, and private property is one such corollary. This happens if a person dies or commits murder while having no heirs or will and testament. Death is the cessation of the biological processes which produce self-ownership. Committing a murder negates one’s self-ownership through the violation of another person’s self-ownership because the moral hypocrisy of claiming one’s own rights while having irreparably violated another person’s rights cannot be rationally advanced in argument. One cannot sell oneself into slavery; as Murray Rothbard explains[1],

“A man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced—for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of “voluntary slavery” is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.”

Herenschrict continues:

I must simultaneously have various rights in order to blast a watermelon with a shotgun for fun. I must have the right to be on the land. I must have the right to use the shotgun. I must have the right to destroy the watermelon. But none of these rights requirements takes philosophical priority over the others by virtue of the need they coincide. In case of conflict between these rights, philosophy does not supply any basis to grant dominance to any one of them.

None of these rights are dependent upon any other of these rights, so it is correct to conclude that philosophy does not supply any basis to grant dominance to any one of them.

Your claim that a property right in one’s own body is not actually a property right but is a different kind of right taking precedence over property rights is not established.

This is a straw man; I did not claim that a property right in one’s physical body is not actually a property right. I made the case that the property right in one’s physical body is logically stronger than a property right in an external object. This is established by the fact that the property right in one’s physical body arises through direct appropriation and inhabitation, while property rights in external objects can only be established through exercising the property right in one’s physical body. There is a clear relationship of dependence here, so the precedence of the property right in one’s physical body over property rights in external objects is established.

Self-ownership does not convey a positive right obligating others to action to keep me alive. I will not repeat the extensive argumentation elsewhere demonstrating the invalidity to the notion of positive rights except to mention its conclusion that positive rights necessarily contravene property rights.

This is another straw man, as a positive right obligating others to action to keep someone alive is not being defended. In fact, the Reecean proviso does not even call for obligating others to inaction to allow a person to keep oneself alive, as a property owner could prevent the proviso from being used simply by making the life-saving property unreachable or by defending it in such a way that it cannot be taken without posing a threat to the property owner.

First, the person’s life must be in jeopardy due to the aggressions of another person and not due to the person’s own action or inaction. Otherwise, a person could make a series of poor choices so as to engineer a situation in which the person is reduced to a stark choice between using another person’s private property or dying and then take advantage of this situation to take private property from another person by underhanded means. Because one inherently consents to what one does to oneself, one cannot commit acts of aggression against oneself. Thus, the threat to one’s life that would allow the Reecean proviso to be used cannot be of one’s own making.

This is an impossible standard to set up as existing philosophically above respect for private property. It is indistinguishable from arbitrary behavioral standards which necessarily must be subordinate to respect for private property. Various degrees of action or inaction may make encountering various types of aggression more or less likely. What constitutes “of one’s own making?”:
– If I fail to save money or work hard enough to feed myself or defend myself
– If I fail to read enough books and develop my negotiating skills enough to optimally manage my interpersonal relationships with potential aggressors and/or allies
– If I fail to make wise choices of career or neighborhood to live in

Can any or all of this be mixed in a pot and out pops a determination that a particular act of aggression upon me was “of my own making” or not due to various particular actions or inactions on my part? That’s an impossible determination to make on any basis other than completely arbitrary.

This is not impossible or arbitrary; in fact it is quite simple. A situation is of one’s own making if it was not forced upon oneself against one’s will by an external agent. As such, all of the above examples would be of one’s own making and not sufficient cause to apply the Reecean proviso.

How would a property owner be able to make this determination on the fly when he detects someone claiming qualification under the Reecean proviso trying to take his stuff? How would a victim himself be able to make such a determination on the fly to know whether he may morally take someone else’s stuff? To think the integrity of one man’s property rights would be philosophically dependent on some other men’s personal views on such matters makes a mockery of the notion of property rights.

This may well be impossible in practice. However, a property owner may be unaware of such a taking until it has already occurred, which would remove the need for the property owner to make such a determination. A person who is in such a position to use the Reecean proviso will know it, as it requires one to be near death and without any other means of preserving one’s life besides appropriating owned property. The objection that the integrity of one person’s property rights would be philosophically dependent on some other person’s views on such matters confuses theory with practice.

Second, the person must not knowingly endanger the life of the property owner.

How in the world can the person know what endangers the life of the property owner?

It is simple to know that some takings would endanger the life of the property owner. If a person is kidnapped and taken to a desert area where only one cactus is within reach, and that cactus bears fruit which is being used by its owner as his sole source of sustenance, then taking some of it after witnessing the owner do this would endanger the life of the property owner and thus be outside of the Reecean proviso.

How in the world can the person know the financial situation of the property owner, his health care needs currently and in the future, his quality/quantity of life trade-off equation, not only for himself but for spouse, his children, his heirs, or other beneficiaries of his property?

This is unnecessary because a person cannot be responsible for knowledge that he does not have and lacks the means to get, as a person in position to use the Reecean proviso would.

Since the sole philosophical role of property is the support of human life, and limits to life directly correspond to limits of property used to support and extend it, any deprivation of property is inherently life threatening by nature. The larger the deprivation, the larger the threat to life.

Does a solitary person who owns thousands of apple trees suddenly suffer a life-threatening circumstance because a desperate person picks one apple? Of course not.

Third, the person must not appropriate any more privately owned resources than are required for survival in the moment. Going above and beyond the bare minimum is an act of theft, as it is not required for survival in the moment. Even taking some extra “for the road” is not allowed, as it cannot be proven that doing so will be the only possible method for survival. Fourth, a person may only travel through territory in which the person is unwelcome if survival requires that one do so. Doing so when there is another path available, or when survival is not in jeopardy, constitutes trespassing. Fifth, a person who is traveling through territory in which the person is unwelcome must traverse the territory as quickly as possible. Taking more time than is reasonably required constitutes loitering and trespassing.

Herenschrict objects to all of these by asking who would determine what is required, what the bare minimum is, what constitutes survival, and what constitutes as quickly as possible. The theoretical answer is that there are objectively true answers to all of these questions, therefore no one determines them. The practical answer is that the property owner, proviso user, and any dispute resolution services they retain will come to some agreement after the fact, as is the case for any other civil dispute.

Survival is an odds game. It is a continuum.

Survival is a binary function; either one lives or one dies. There is no state of being in between the two.

The more resources and easier journey, the higher my chances of survival. If I can slowly trespass on 100 miles of private land in a valley with lush fruit for me to eat, or quickly trespass on 1 mile of private land across high mountains with dangerous arctic snowblasts, am I morally justified to trespass on one but not the other?

One would have to take the shorter, more treacherous path because it minimizes the appropriation of private property belonging to other people.

If I can avoid land trespass entirely by commandeering a car at gunpoint to maximize speed of property violation and maximize my survival prospects, is that the only morally justifiable path?

Herenschrict demonstrates a level of misunderstanding here that can only be intentional. Commandeering a car at gunpoint threatens the life of a property owner, therefore it is not permitted under the Reecean proviso.

If you think transferring private property from some parties to others under certain conditions leads to a more prosperous, happy society, then by all means make voluntary relinquishing of those property rights a condition of membership in your private defense organization so such rules apply among mutually consenting parties. But don’t act as if your vision of a society that disregards property rights for the greater good just some of the time has any philosophical basis and binds even those who do not agree.

This is yet another straw man, as no such things are argued by the Reecean proviso.

Sixth, a person who deprives a property owner of value in order to survive must make restitution for that value if and when this becomes possible.

You know your philosophical reasoning has gone completely off the reservation when you must solve the socialist calculation problem in order to employ your principles. What constitutes “fair” restitution, below which one violates the Reecean proviso and cannot morally seize another’s private property but above which one fulfills it and can morally seize another’s private property?

This would be a devastating criticism if there were any truth to it, but there is none. There is no need to solve an economic calculation problem because the property owner, proviso user, and any dispute resolution services they retain can come to an agreement on what restitution, if any, should be made without making such a rigorous calculation. “Seize” is not the most accurate term for what the Reecean proviso allows, as it does not allow for force that threatens the property owner.

Ask any eminent domain victim how well involuntarily imposed determinations of “fair” compensation for seizures of their property work. Since values are subjective, “fair” prices for goods are settable only by their owners. And such individual prices can vary wildly from item to item from moment to moment, depending on the owners personal circumstances, state of mind, and decisions, including may items owners rightfully regard as “not for sale at any price.”

The field of straw men keeps growing, as the compensation is to be determined voluntarily between the property owner, proviso user, and any dispute resolution services they retain, not involuntarily imposed. The only exception to this would occur if the proviso user refused to make any restitution for the property that was used, in which case force could be used against the proviso user to get said restitution. An item rightfully regarded by its owner as “not for sale at any price” will either be something that has high sentimental value or something that the owner requires to survive. The former is not needed by the proviso user for survival (and probably cannot be obtained without threatening the property owner), while taking the latter would threaten the property owner. In both cases, the item cannot be appropriated within the Reecean proviso.

Passively owning property is not interfering with the self-ownership rights of another.

In the vast majority of cases, this is true. The Reecean proviso exclusively addresses so-called “lifeboat scenarios” in which it is false.

If a property owner put a sturdy, impenetrable fence around his property he would be guilty of aggression because this would thwart the attempts of Reecean-proviso-qualifying individuals to seize his property. By your reasoning to remain moral he must provide his private property to them on demand, because if they demand it, it’s not his property any more, it’s theirs by right.

The Reecean proviso allows people who are in extreme circumstances a negative right to keep themselves alive. This is not a positive obligation upon the property owner to assist in such an act. In fact, as mentioned earlier, the property owner may thwart the Reecean proviso by making the life-saving property unreachable or by defending it in such a way that it cannot be taken without posing a threat to the property owner. The property is not theirs by right; they may simply use it if and only if they can and they must.

One may, in spite of the above limitations, try to equate the Reecean proviso with a form of socialism or forced redistribution. But if there is to be forced redistribution, then there must be someone who will do the forcing. Such a person would be acting as the jeopardized person’s agent, and would therefore be subject to the same restrictions on conduct that apply to the jeopardized person.

Enter the ambulance-chasing attorney eager to become the agent of anyone and everyone around the planet who fulfills the conditions of the Reecean proviso (for a cut of the loot he can obtain for them, of course). If there is an impoverished rice farmer in rural India whose life becomes imperiled by aggression but could be saved by his seizure of private property, the attorney will be there in a flash offering to become his agent.

As explained in the original article immediately following the quoted section, if one is able to get someone to forcibly redistribute wealth to keep one alive, then one will have other, less aggressive options available, such as arranging survival aid and evacuation from the desperate scenario to be carried out by the person who would act to forcibly redistribute wealth. The arrival of the attorney gives the imperiled person an alternative to appropriating another person’s private property, as the attorney should be able to make a return trip with the imperiled person, thus removing the person from the imperiling condition. Note also that by inserting himself into the situation, the attorney makes the vehicle in which he arrives as well as his personal possessions prime targets for appropriation, which disincentivizes ambulance-chasing attorneys from seeking such cases.

Then, armed with the full moral authority of Reecean proviso, the attorney can appropriate the private property of anyone. Of course if the Indian farmer suffered severe, traumatic injuries from the aggression requiring an immediate helicopter flight to a major city and immediate extensive reconstructive surgery in order for him to survive, his medical bills could be substantial. Fortunately for him, by the Reecean proviso every private property owner in existence is obligated to pay these bills to make sure this man does not immediately die and the attorney will gleefully make sure they do.

This is completely false, due to the defenses that private property owners may make against the Reecean proviso, such as making such property unreachable or by defending it in such a way that it cannot be taken without posing a threat to the property owner.

The Reecean proviso amends Rothbard’s response to say that the encirclers may not keep the encircled in a situation where survival is impossible.

You may not amend Rothbard’s response. Rothbard’s response was what it was for a reason. Your amendment contradicts it.

I may do whatever I wish with Rothbard’s response. However, my readers will be the judge of whether such an action is legitimate by voting with their donations and page views.

References:

  1. Rothbard, Murray (1982). The Ethics of Liberty. p. 40-41

The Reecean Proviso

The institution of private property is fundamental to economics and indeed, to civilization itself, as we know it. Classical liberal and libertarian theorists have constructed rational arguments to describe and defend the nature of private property, and an overview of these arguments will follow. After this, the Reecean proviso to private property rights will be introduced, elaborated upon, and defended from likely objections.

We begin with Thomas Hobbes, who writes[1],

“Therefore, whatever results from a time of war, when every man is enemy to every man, also results from a time when men live with no other security but what their own strength and ingenuity provides them with. In such conditions…the life of man solitary, poor, nasty, brutish, and short.

[…]

A further fact about the state of war of every man against every man: in it there is no such thing as ownership, no legal control, no distinction between mine and thine. Rather, anything that a man can get is his for as long as he can keep it.

In other words, one effectively owns whatever one can take and defend, no more and no less. Hobbes theorized that people needed to enter into a social contract and live under a nearly absolute monarch in order to escape this condition. He believed that private property rights would return us to the state of nature if not for the ability of the state to take and use any and all individual property for the collective good.

The fundamental error of Hobbes is that the state of nature he describes is inescapable. Regardless of which theories of just property ownership are developed and put into practice, what one effectively owns is still whatever one can take and defend. The state simply transforms the war of all against all into a war of some against others, and is the result of one person or group managing to dominate the war. The extent to which life is not “solitary, poor, nasty, brutish, and short” is possible not because of the state, but because of the private property that Hobbes condemns. His social contract theory is also faulty; a contract is invalid unless all parties voluntarily agree to its terms. The state will initiate the use of force against people who do not wish to enter into the social contract, meaning that any such consent must be under duress and therefore invalid.

The intellectual foundation for a libertarian theory of property rights begins with John Locke. Locke writes[2],

“Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this no body has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it, that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough and as good left in common for others.”

The idea that “every man has a property in his own person; this no body has any right to but himself” is called self-ownership, and its validity was proven by Murray Rothbard in a straight-forward manner[3]:

“Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.”

What Rothbard points out is a performative contradiction contained in all arguments against self-ownership, and the presence of one of these within an argument falsifies the argument. By the law of excluded middle, if all arguments against an idea must be false, then the idea must be true.

The last part of the above quote from Locke, that people may establish private property unless doing so causes there not to be “enough and as good left in common for others,” was termed the Lockean proviso by Robert Nozick[4]. Interestingly, Locke moves on to the next section of his work without even bothering to explain why such a limit should be in place. The Lockean proviso does not withstand scrutiny; as Tibor Machan explains[5],

“[S]ome have argued that in terms of it the right to private property can have various exceptions and it may not even be unjust to redistribute wealth that is privately owned. I argue that this cannot be right because it would imply that one’s right to life could also have various exceptions, so anyone’s life (and labor) could be subject to conscription if some would need it badly enough. Since this could amount to enslavement and involuntary servitude, it would be morally and legally unacceptable.”

The Reecean Proviso

It is possible, however, to construct another proviso from first principles that limits absolute private property rights to a far lesser extent. To my knowledge, this has not been done elsewhere, so I will call this the Reecean proviso. We begin with self-ownership, that each sentient being has property in one’s own physical body through exclusive direct control over it. This direct appropriation necessarily precedes any indirect appropriation, as the only way that one can create private property through labor upon unowned natural resources is by directly controlling one’s physical body in order to control such resources indirectly. Thus, private property rights over external objects are dependent upon the property right over one’s physical body. That which is dependent cannot overrule that upon which it is dependent. Therefore, self-ownership stands above private property rights in external objects.

Next, let us note that all sentient beings are equal in their self-ownership, in that all sentient beings have property in their own physical bodies through exclusive direct control over them. Although the nature of their bodies (and minds) may result in different beings appropriating different quantities of external resources and in different beings having more or less capability to defend those resources from challengers in practice, the theoretical strength of a particular property right over an external object by one sentient being is equivalent to the strength of another particular property right over another external object by another sentient being. Applying this standard to the fact that self-ownership stands above private property in external objects, we get the result that the self-ownership of one sentient being stands above the private property rights in external objects of another sentient being. This is the Reecean proviso.

At first, this result may appear to be sufficiently broad as to collapse the whole idea of private property into a Hobbesian nightmare, or at least a socialist dystopia. But in order for this result to apply, the self-ownership of one sentient being must be in conflict with the private property rights in external objects of another sentient being. The possible scope of such a conflict is quite narrow, as it requires a person’s life to be in jeopardy with no other possibility for survival but to use another person’s private property. But even this is not narrow enough, as restricting the scope no further would allow for several absurdities. Let us see just how narrow this scope is.

First, the person’s life must be in jeopardy due to the aggressions of another person and not due to the person’s own action or inaction. Otherwise, a person could make a series of poor choices so as to engineer a situation in which the person is reduced to a stark choice between using another person’s private property or dying and then take advantage of this situation to take private property from another person by underhanded means. Because one inherently consents to what one does to oneself, one cannot commit acts of aggression against oneself. Thus, the threat to one’s life that would allow the Reecean proviso to be used cannot be of one’s own making. Second, the person must not knowingly endanger the life of the property owner. If this were to occur, then we would no longer be weighing one person’s self-ownership against another person’s private property rights in external objects, but one person’s self-ownership against another person’s self-ownership. In such a case, the property owner gets to decide whether to use force to defend against the newcomer’s aggression. Third, the person must not appropriate any more privately owned resources than are required for survival in the moment. Going above and beyond the bare minimum is an act of theft, as it is not required for survival in the moment. Even taking some extra “for the road” is not allowed, as it cannot be proven that doing so will be the only possible method for survival. Fourth, a person may only travel through territory in which the person is unwelcome if survival requires that one do so. Doing so when there is another path available, or when survival is not in jeopardy, constitutes trespassing. Fifth, a person who is traveling through territory in which the person is unwelcome must traverse the territory as quickly as possible. Taking more time than is reasonably required constitutes loitering and trespassing. Sixth, a person who deprives a property owner of value in order to survive must make restitution for that value if and when this becomes possible. To take and keep the value when one could make restitution constitutes theft.

Objections

With the Reecean proviso properly limited, let us address some likely objections. The first is that using this proviso may appear to be an act of aggression. The non-aggression principle is not an axiom, but a logical corollary of self-ownership. If each person owns one’s physical body, and all instances of self-ownership have equal theoretical strength, then it is wrong to exercise one’s self-ownership to interfere with another sentient being’s self-ownership. As such, it makes more sense to call this the non-aggression theorem. The Reecean proviso does not permit interference with anyone’s self-ownership; only with another corollary thereof, that of private property rights in external objects.

The second likely objection comes from Walter Block’s theory of negative homesteading. This comes into play when discussing the problem of innocent shields, and leads to the conclusion that an innocent shield may be harmed in the course of subduing an aggressor if there is no way to subdue the aggressor without harming the innocent shield. But the innocent shield problem, as well as the lightning transfer problem that Block discusses, weighs one self-ownership against another, not self-ownership versus private property rights in external objects. As such, this objection is also of no help to the critic of the Reecean proviso.

Third, one may, in spite of the above limitations, try to equate the Reecean proviso with a form of socialism or forced redistribution. But if there is to be forced redistribution, then there must be someone who will do the forcing. Such a person would be acting as the jeopardized person’s agent, and would therefore be subject to the same restrictions on conduct that apply to the jeopardized person. The result of applying these restrictions is that all the property owner need do is to defend the property in such a way that it cannot be taken without threatening the property owner’s life. It must also be noted that if one is able to get someone to forcibly redistribute wealth to keep one alive, then one will have other, less aggressive options available, such as arranging survival aid and evacuation from the desperate scenario to be carried out by the person who would act to forcibly redistribute wealth.

Fourth, one may object that it will be difficult to determine when the Reecean proviso applies versus when a desperate person has committed aggression by taking more than what is required. For the proviso to apply in a dispute resolution arbitration, it must be true and provable that a desperate person abided by the proviso. Proving that one did not bring the situation upon oneself, endanger the property owner, take more resources than needed, go onto private lands without cause, stay on such lands longer than necessary, or fail to make required restitution will be all but impossible. This is a fair point. With the preceding point in mind, the most plausible objection to the Reecean proviso is that it is so limited in scope that it may become a triviality, being in the libertarian philosophical tradition but never finding a practical use. We can only hope that this is true; that no non-aggressive person should ever be forced into a situation where the only available options are to commandeer a small amount of another person’s resources or to perish of hunger, thirst, and exposure.

Example

Finally, let us consider an example. A classic problem in libertarian theory is the issue of encirclement. Nozick writes[6],

“The possibility of surrounding an individual person presents a difficulty for a libertarian theory that contemplates private ownership of all roads and streets, with no public ways of access. A person might trap another by purchasing the land around him, leaving no way to leave without trespass. It won’t do to say that an individual shouldn’t go to or be in a place without having acquired from adjacent owners the right to pass through and exit. Even if we leave aside questions about the desirability of a system that allows someone who has neglected to purchase exit rights to be trapped in a single place, though he has done no punishable wrong, by a malicious and wealthy enemy (perhaps the president of the corporation that owns all of the local regular thoroughfares), there remains the question of ‘exit to where?’ Whatever provisions he has made, anyone can be surrounded by enemies who cast their nets widely enough.”

Rothbard responds[7],

“One example of Nozick’s sanctioning aggression against property rights is his concern with the private landowner who is surrounded by enemy landholders who won’t let him leave. To the libertarian reply that any rational landowner would have first purchased access rights from surrounding owners, Nozick brings up the problem of being surrounded by such a set of numerous enemies that he still would not be able to go anywhere. But the point is that this is not simply a problem of landownership. Not only in the free society, but even now, suppose that one man is so hated by the whole world that no one will trade with him or allow him on their property. Well, then, the only reply is that this is his own proper assumption of risk. Any attempt to break that voluntary boycott by physical coercion is illegitimate aggression against the boycotters’ rights. This fellow had better find some friends, or at least purchase allies, as quickly as possible.”

The Reecean proviso amends Rothbard’s response to say that the encirclers may not keep the encircled in a situation where survival is impossible. If the encircled can survive where they are, then they must either stay put or devise a method for flying over or burrowing under the private property in which they are unwelcome. But if survival is impossible, then the Reecean proviso says that their self-ownership trumps private property rights in external objects. This allows them to leave the place where survival is impossible. But does it allow them to return? Not through the encirclement, because returning to the position where survival is impossible constitutes both an engineering of the situation and traveling through territory where one is unwelcome without having to do so. The encircled, if they choose to leave, can only return if the encirclement ceases or they find a way to access the encircled area without infringing upon property rights.

References:

  1. Hobbes, Thomas (1651). Leviathan. p. 58-59
  2. Locke, John (1689). Second Treatise of Government. p. 11
  3. Rothbard, Murray (1982). The Ethics of Liberty. p. 32
  4. Nozick, Robert (1971). Anarchy, State, and Utopia. p. 175-76
  5. Self-ownership and non-culpable proviso violations Politics, Philosophy & Economics February 1, 2015 14: p. 67-83
  6. Nozick, Robert (1971). Anarchy, State, and Utopia. p. 55
  7. Rothbard, Murray (1982). The Ethics of Liberty. p. 240

The 100 and a libertarian perspective on innocent shields

The 100 recently wrapped up its second season. The show is based on a book of the same name, but only loosely follows it. The show is set about a century after a nuclear war occurred on Earth. There are three major types of survivors: those who lived on space stations (Sky People), those who remained on the ground (Grounders), and those who took over a military installation at Mount Weather and have lived inside the mountain (Mountain Men). The Grounders are adapted to the higher radiation levels, and so are the Sky People due to exposure to radiation in space. The Mountain People, however, are not adapted and will die almost instantly upon exposure to the outside world. The show mainly focuses on the Sky People, beginning with their struggles in space which force them to return to the surface and continuing with their interactions with the other two types of survivors that they find there.

The finale, “Blood Must Have Blood, Part 2,” contained an interesting moral dilemma. The Mountain People are led by Cage, a tyrant who is willing to use any means necessary to make his people capable of living on the surface. He has captured about 40 Sky People and his underlings are forcibly extracting their bone marrow for transplants into his people so that they can have resistance to the radiation. Cage intends to exterminate the captives in the process. Clarke, the leader of a small strike force of Sky People, only has one way to stop him: reverse the air filtration of Mount Weather to flood it with radiation, thereby killing all of the Mountain People, including hundreds of innocent civilians who are not involved with or even supportive of Cage’s actions. She struggles with this decision, but ultimately chooses to flip the switch and kill the Mountain People to save her people. From a libertarian perspective, was Clarke’s decision justified? Let us see.

Essentially, this is a more complicated version of the problem of innocent shields. The Mountain People other than Cage and his underlings are innocents, but so are the captured Sky People. Clarke effectively kills the aggressors (except for Cage, who has already made himself resistant to radiation but is killed by a Grounder shortly after escaping Mount Weather) but wipes out the innocent Mountain People to save the captured Sky People. Unquestionably, Clarke was justified in killing Cage’s underlings and trying to kill Cage. They were committing acts of murder and were therefore estopped from complaining about violations of their own rights to life. But what of the innocents among the Mountain People? To answer this, we need to consider two libertarian theories on the matter of innocent shields: that of strict non-aggression and that of negative homesteading.

Strict adherence to the non-aggression principle would suggest that the Mountain People civilians are non-aggressors and that harming them is immoral. But if this is true, then the captured Sky People are doomed. If Clarke cannot kill the Mountain People, then Cage and his underlings will murder the captured Sky People. But the non-aggression principle is not an axiom; it is a logical corollary of the right to exclusive control over one’s physical body, which is the starting point for any logically rigorous moral theory. (To argue against this right would result in a performative contradiction.) To have another theory for this situation, we need to find another such logical corollary of bodily ownership and use it. Toward that end, Walter Block introduced the concept of negative homesteading. To quote Block,

“In ordinary homesteading, or what we must now call positive homesteading to distinguish it from this newly introduced variety, it is the first person upon the scene who mixes his labor with the land or natural resource who comes away with the property rights in question. It is the first man who farms a plot of land, who becomes the rightful owner. A similar procedure applies to negative homesteading, only here what gets to be “owned” is a negative, not a positive. This concept refers to some sort of unhappiness, not a benefit such as owning land. The ownership of misery, as it were, must stay with its first victim, according to this principle. He cannot legitimately pass it onto anyone else without the latter’s permission.”

At first glance, the case at hand appears to be more complicated than the case Block discusses first:

“A grabs B to use as a shield; A forces B to stand in front of him, and compels him to walk wherever A wishes. A then hunts C in order to murder the latter by shooting him. C also has a gun. Is it legally permissible for C to shoot at A in self defense under libertarian law?”

Here, there are groups rather than individuals, and A is using B as a shield while killing C that is not armed. D must decide to either kill both A and B or to allow A to kill C. Replacing D with C is functionally equivalent because D (Clarke) is acting as C’s (Sky People’s) agent, and the moral limitations of one’s own actions are identical to the moral limitations of the actions of one’s agent. As groups have no existence apart from the individuals which comprise said groups, this difference may also be discarded. As such, we are back to the original case: C must choose either to allow oneself to be murdered or to kill both the aggressor (A) and the shield (B).

To use the theory of negative homesteading, we must identify the first homesteader of the misery. This is the Mountain People. Cage started this scenario by assuming a leadership position over the Mountain People, to which they did not object even though they were numerous enough to overthrow him. It is impermissible for the Mountain People to transfer this misery to the Sky People. Even in the best case for Cage and his underlings, which is that they would let the Mountain People go free after giving them the Sky People’s bone marrow, the Mountain People will have succeeded in passing off enough misery onto the Sky People to kill them. Thus, the theory of negative homesteading permits Clarke to do what she did even though a strict view of the non-aggression principle would not.

Why Robert Pittenger is essentially correct about discrimination

On Sept. 8, Rep. Robert Pittenger (R-NC) was asked by ThinkProgress’ Alice Ollstein after a town hall meeting in Ballantyne about whether he supported laws to protect gays in the workplace. He responded, “You need to respect the autonomy of somebody running their business. It’s like smoking bans. Do you ban smoking or do people have the right to private property? I think people have the right to private property. In public spaces, absolutely, we can have smoking bans. But we don’t want to micromanage people’s lives and businesses. If you have a business, do you want the government to come in and tell you you need to hire somebody? Why should government be there to impose on the freedoms we enjoy?”

This statement led to predictable outrage from leftist activists, bloggers, and newspaper editorial boards. “Rep. Pittenger’s ill-informed opinion is also not consistent with the fair-minded opinion of most Americans,” said David Stacy, government affairs director for the Human Rights Campaign, a gay rights organization. “The vast majority of Americans back commonsense workplace protections for LGBT Americans.”

Below, I will make the case that such an opinion is not ill-informed (even if ill-stated and ill-defended by Rep. Pittenger) and is consistent with libertarian philosophy.

The first order of business is to define what is meant by discrimination. The dictionary definition of discrimination is “the practice of unfairly treating a person or group of people differently from other people or groups of people.” The only problematic part of this definition is the word “unfairly,” which could be (and has been) used to twist the meaning of discrimination in an arbitrary fashion. After all, who decides what is fair or unfair? Those involved in an interaction, or someone outside the interaction? If the latter, then what gives them legitimacy to say what is fair or unfair? Ultimately, fairness is subjective because values and opinions are subjective. The only objective consideration concerning fairness in libertarian philosophy is whether an action is consistent with the non-aggression principle. Therefore, discrimination for the purpose of this essay will be defined as “the practice of treating a person or group of people differently from other people or groups of people without violating the non-aggression principle.”

The second task is to construct a logical framework for the right to discriminate. This is a rather straightforward task. The right to discriminate against any person for any reason is part and parcel of the right of freedom of association. In order to argue against freedom of association, one must exercise freedom of association toward the recipient(s) of one’s argument. Therefore, any argument against freedom of association contains a performative contradiction which falsifies the argument. As an idea which cannot have a valid argument against it must be true, freedom of association is a valid right which should not be violated.

The other right which comes into play when discussing discrimination is the right to private property. Private property is rightfully established by mixing one’s labor with unowned natural resources. This comes from being responsible for the consequences of one’s actions, which in turn comes from ownership of one’s physical body. In order to argue against ownership of one’s physical body, one must exercise exclusive control of one’s physical body (to write, speak, type, etc.), which only a rightful owner legitimately may do. Therefore, any argument against ownership of one’s physical body contains a performative contradiction which falsifies the argument. Thus, ownership of one’s physical body is a valid right which should not be violated, as are the corollaries thereof, such as private property rights.

So far, we have a logical case that no one, including an agent of the state, should interfere with private property or freedom of association. Effectively, this means that no one should initiate the use of force to prevent discrimination. (This, of course, does not equate to a case for why people should exercise their right to discriminate on the basis of sexual orientation, race, gender, age, or any other basis; it is only a case for why they should be allowed to do so.) But although discrimination is allowed under libertarian philosophy, it will be discouraged by market forces. In a free market, bigots are punished because they relinquish customers and employees who have the traits against which the bigot is prejudiced as well as customers and employees who are sufficiently offended by said prejudice to ostracize the bigot. This is more than a linear relationship, as those who cannot or will not obtain goods, services, and employment from the bigot will be likely to do so from other providers who are not bigoted rather than do without. This will not only impoverish the bigot, but enrich his competitors. The eventual result is that bigots cannot compete with those who are not bigoted, and must either renounce their bigotry or go out of business.

At this point, statists may protest that the above free market scenario has not played out, and that government intervention is therefore necessary to stop discrimination. Of course, this violates logically proven rights, but statists tend not to understand or care about this; otherwise, they would not be statists. The Charlotte Observer Editorial Board asked whether Rep. Pittenger would find it acceptable to fire an employee for being black, so let us consider the history of that case. Prior to the Civil Rights Movement, Jim Crow laws forced many business owners not to serve customers or hire employees whom they would have served or hired otherwise. Since that time, anti-discrimination laws have forced many business owners to serve customers and hire employees whom they would not have served or hired otherwise. In both cases, force has been used to interfere with the market to keep voluntary methods of dealing with bigotry from being tested. To claim that voluntary methods cannot work while supporting laws that prevent voluntary methods from having a chance to work is logically inconsistent.

One must also remember the role that government has played in indoctrinating children with racist beliefs. The racists who held political and business positions in the 1950s and 1960s would have been schoolchildren in the 1920s. Let us consider an example of what they were taught. This excerpt comes from Civic Biology (1914). (If the book sounds familiar, it is because it was used by John Scopes to teach evolution in Tennessee in 1925, leading to the Scopes “Monkey” Trial.)

“The Races of Man. — At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the Caucasians, represented by the civilized white inhabitants of Europe and America.”

With this sort of racism being taught to children in public schools, it is no wonder that a large number of them would grow up to be racists.

Another important aspect of government laws is that they frequently have unintended consequences that harm the people they are intended to help. For example, when an anti-discrimination law prohibits firing an employee for having a certain characteristic, an employer is less likely to hire people with that characteristic because it is too difficult and troublesome to fire such people if they are incompetent, as they can claim that they were fired for a legally prohibited reason and make trouble for an employer.

More generally, the belief that an action cannot be performed solely because it has yet to be performed constitutes a logical fallacy. The assertion that the free market cannot effectively deal with bigotry simply because there is not yet an empirical example of the exact outcome described above is such a fallacy (as well as an ipse dixit fallacy.)

The other criticism typically levied against libertarianism in this regard is that it is just a cover for bigotry. This criticism is easily dismissed. Libertarianism is a philosophical position on what constitutes the legitimate use of force. It says that initiatory force is never justifiable and defensive force is always justifiable. Libertarianism says nothing about bigotry one way or the other, as long as that bigotry does not involve initiatory force. To claim that a philosophy defends a certain position simply because it does not attack that position is a false dilemma fallacy. That being said, even if it were true that libertarianism is a cover for bigotry, this would actually produce good results. If bigots would become libertarians, then they would have to abide by the non-aggression principle. This means that they would stop initiating the use of force and advocating for politicians to do so on their behalf in order to advance pro-bigotry agendas. Therefore, bigots will do less damage to other people if they become libertarians.

It is thus clear that while Rep. Pittenger’s defense of his position was rather inept and his comparison between discrimination against LGBT people and discrimination against smokers is problematic, the opinion that discrimination should not be legally prohibited by the state is not ill-informed or illogical.