On The Ethics of Liberty

// published 10/6/2015

This is one part of a series dedicated to the question "why is Anarcho-capitalism a bad idea?".

This part will be a short (and incomplete) literary critique of a central part of anarcho-capitalist theory, namely the book The Ethics of Liberty by Murray Rothbard (and an introduction written by Hans-Hermann Hoppe).

Upon reading Rothbard's book there was one aspect of his writing which bugged me throughout: Rothbard has a tendency to simplify and abstract subjects down to a point which affirms his initial stance. The level of abstraction often appears to be chosen for the sake of his argument rather than adapted to the specific subject at hand. But that's a very superficial observation, let's dig into more detail:

We start out with an introduction by Hans-Hermann Hoppe for Rothbard's The Ethics of Liberty which neatly outlines the basic principles underlying anarcho-capitalism.

Taking his cues from the very same sources, Rothbard then offered this ultimate proof for these rules as just rules: if a person A were not the owner of his physical body and all goods originally appropriated, produced or voluntarily acquired by him, there would only exist two alternatives. Either another person, B, must then be regarded as the owner of A and the goods appropriated, produced, or contractually acquired by A, or both parties, A and B, must be regarded as equal co-owners of both bodies and goods. In the first case, A would be B's slave and subject to exploitation. B would own A and the goods originally appropriated, produced, or acquired by A, but A would not own B and the goods homesteaded, produced, or acquired by B. With this rule, two distinct classes of people would be created--exploiters (B) and exploited (A)-to whom different "law" would apply. Hence, this rule fails the "universalization test" and is from the outset disqualified as even a potential human ethic, for in order to be able to claim a rule to be a "law" (just), it is necessary that such a rule be universally-equally-valid for everyone. In the second case of universal co-ownership, the requirement of equal rights for everyone is obviously fulfilled. Yet this alternative suffers from another fatal flaw, for each activity of a person requires the employment of scarce goods (at least his body and its standing room). Yet if all goods were the collective property of everyone, then no one, at any time and in any place, could ever do anything with anything unless he had every other co-owner's prior permission to do what he wanted to do. And how can one give such a permission if one is not even the sole owner of one's very own body (and vocal chords)? If one were to follow the rule of total collective ownership, mankind would die out instantly. Whatever this is, it is not a human ethic either. Thus, one is left with the initial principles of self-ownership and first-use-first-own, i.e., original appropriation, homesteading. They pass the universalization test-they hold for everyone equally-and they can at the same time assure the survival of mankind. They and only they are therefore non-hypothetically or absolutely true ethical rules and human rights. (p. xvi, Rothbard, 1998)

It seems immediately striking, that Rothbard has left out a third option that A and B could be owners of the appropriated goods but only B could be the owner of body B and A respectively of his body. This setup would fulfill Rothbard's universalization-test (which will not be discussed here) and allow the individuals to have a discussion about the proper usage of these goods. However that would violate another Rothbardian principle: that self-ownership implies the ownership of appropriated goods. Therefore in a next step we must find out why Rothbard argues that self-ownership and appropriated goods are inseparably linked. Rothbard outlines his explanation on the example of a sculptor:

Let us turn from Crusoe and Friday and consider the question of a sculptor who has just created a work of sculpture by transforming clay and other materials (and let us for the moment waive the question of property rights in the clay and the tools). The question now becomes: who should properly own this work of art as it emerges from the fashioning of the sculptor? Once again, as in the case of the ownership of people's bodies, there are only three logical positions: (1) that the sculptor, the "creator" of the work of art, should have the property right in his creation; (2) that another man or group of men have the right in that creation, i.e. to expropriate it by force without the sculptor's consent; or (3) the "communist" solution - that every individual in the world has an equal, quota right to share in the ownership of the sculpture. Put this starkly, there are very few people who would deny the monstrous injustice in either a group or the world community seizing ownership of the sculpture. For the sculptor has in fact "created" this work of art - not of course in the sense that he has created matter, but that he has produced it by transforming nature-given matter (the clay) into another form in accordance with his own ideas and his own labor and energy. Surely, if every man has the right to own his own body and if he must use and transform material natural objects in order to survive, then he has the right to own the product that he has made, by his energy and effort, into a veritable extension of his own personality. Such is the case of the sculptor, who has placed the stamp of his own person on the raw material, by "mixing his labor" with the clay. But if the sculptor has done so, then so has every producer who has "homesteaded" or mixed his labor with the objects of nature. (p. 48ff, Rothbard, 1998)

The argument according to Rothbard was that since a sculptor instills his personality and his work into the sculpture it becomes his property and nobody should have the right to take it away from him. I was hoping for a clarification of this concept later in the book, but was unable to find one (feel free to direct me to a better explanation, if available). Now while the argument appears somewhat convincing in the exact example of a sculptor using clay and his work to model figures, it seems like an oversimplification to extrapolate from this simple example to any "thing" which can be originally appropriated through work. Does a miner that digs up rocks also instill his personality into the minerals (and as such an expression of his free will)? Rothbard fails to make a compelling case for a natural law that forbids any interference with property from other people - with obvious exceptions such as cases where a good is absolutely required for the survival of that person, such as medication or water.

Rawls - in his A Theory of Justice - takes on a different approach on how one should arrive at a law which governs societies (and the property which the people within it own). Rawls does not deduct natural laws from some fundamental state of nature but rather suggests a process by which people can arrive at just rules which govern a society, all without preemptively excluding any form of intervention in property as unlawful:

In order to do this we are not to think of the original contract as one to enter a particular society or to set up a particular form of government. Rather, the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established. This way of regarding the principles of justice I shall call justice as fairness.

[...]

In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract. This original position is not, of course, thought of as an actual historical state of affairs, much less as a primitive condition of culture. It is understood as a purely hypothetical situation characterized so as to lead to a certain conception of justice. Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. (p. 10ff, Rawls, 1971)

Hoppe criticizes Rawl's development of justice in the introduction to Ethics of Liberty. He criticizes the thought experiment of the original position as a being some sort of socialist-egalitarian theory of justice. Hoppe writes:

Such beings, Rawls concluded, cannot but "acknowledge as the first principle of justice one requiring an equal distribution (of all resources). Indeed, this principle is so obvious that we would expect it to occur to anyone immediately" True; for if it is assumed that "moral parties" are not human actors but disembodied entities, the notion of private property must indeed appear strange. As Rawls admitted with captivating frankness, he had simply "defined the original position so that we get the desired result. Rawls's imaginary parties had no resemblance whatsoever with human beings but were epistemological somnambulists; accordingly, his socialist-egalitarian theory of justice does not qualify as a human ethic, but something else entirely. (p. xv, Rothbard, 1998)

However Hoppe is being disingenuous by only quoting a short part of Rawls and leaving out a very enlightening paragraph which follows:

Indeed, this principle is so obvious given the symmetry of the parties that it would occur to everyone immediately. Thus the parties start with a principle requiring equal basic liberties for all, as well as fair equality of opportunity and equal division of income and wealth. But even holding firm to the priority of the basic liberties and fair equality of opportunity, there is no reason why this initial acknowledgment should be final. Society should take into account economic efficiency and the requirements of organization and technology. If there are inequalities in income and wealth, and differences in authority and degrees of responsibility, that work to make everyone better off in comparison with the benchmark of equality, why not permit them? One might think that ideally individuals should want to serve one another. But since the parties are assumed to be mutually disinterested, their acceptance of these economic and institutional inequalities is only the recognition of the relations of opposition in which men stand in the circumstances of justice. They have no grounds for complaining of one another’s motives. Thus the parties would object to these differences only if they would be dejected by the bare knowledge or perception that others are better situated; but I suppose that they decide as if they are not moved by envy. Thus the basic structure should allow these inequalities so long as these improve everyone’s situation, including that of the least advantaged, provided that they are consistent with equal liberty and fair opportunity. Because the parties start from an equal division of all social primary goods, those who benefit least have, so to speak, a veto. Thus we arrive at the difference principle. Taking equality as the basis of comparison, those who have gained more must do so on terms that are justifiable to those who have gained the least. (p. 130ff, Rawls, 1971)

As we can see, Rawls is not arguing for a socialist-egalitarian society at all. Furthermore it seems particularly unfitting that Hoppe criticizes Rawls' thought experiment as being unrealistic - because humans are unaware of their physical constitution as well as their social status behind the veil of ignorance - when this kind of abstraction seems perfectly passable for Rothbard. He reduces each individual to an entity with free will, whose property and self-ownership must thus remain intact at all times, regardless of their social status or physical constitution. Couldn't that be a bit of an oversimplification as well? Is Hoppes aware that either both Rothbard and Rawls are dramatically simplifying their respective settings to arrive at their desired argument or that he is judging the two theories based on different measures?

After all John Rawls would be perfectly happy with Hoppe's critique of his theory. As with any theory, there are no ultimate truths, no absolute laws, by which we can measure ethics. As Rawls (and any respected ethicist in the field) has realized, it is impossible to conclude based on what is (scientific observations in nature) what should be (normative statements) - no matter how hard we try. This is a naturalistic fallacy which was already obvious to David Hume when wrote about it in his book A Treatise of Human Nature back in 1739 (1). Instead the approach of any respectable ethicist is much more humble - they don't attempt to derive some universal theory which is irrefutable, undeniable and absolutely provable but rather argue for theories which stand tall against any form of criticism and reasoning. If the community reasons about them and finds them conclusive and reasonable they become accepted.

Rothbard on the other hand takes a distinctively different approach. He argues that he didn't come up with the idea of his natural law, but instead that the natural law must undeniably follow based on the constitution of human nature and that he merely "discovered" it. He claims that - much like physical laws - his natural law holds true, regardless of whether humans follow this law, regardless of whether people know about this law, regardless of which state a society is in - there even need not be any humans at all: Even from the theoretical concept of human nature (as long as those humans have free will) one can logically deduce these natural laws of self-ownership and property (2). This makes Rothbard's theories in his own eyes absolutely incontestable and irrefutable, because they are based on logic alone (albeit a flawed one, as we will soon see).

It's needless to say Rothbard was aware of this old (Hume-ian) threat to his universal theory and attempts to counter Hume's argument preemptively:

David Hume is the philosopher supposed by modern philosophers to have effectively demolished the theory of natural law. Hume's "demolition" was two-pronged: the raising of the alleged "fact-value" dichotomy, thus debarring the inference of value from fact, and his view that reason is and can only be a slave to the passions. In short, in contrast to the natural-law view that man's reason can discover the proper ends for man to follow, Hume held that only the emotions can ultimately set man's ends, and that reason's place is as the technician and handmaiden to the emotions. (p. 14ff, Rothbard, 1998)

Rothbard's argument that Hume thinks that reason is always a slave to passions is completely irrelevant here (and would warrant another entire discussion about Humes which will not be held here). However Hume's statement that we cannot simply conclude from what is to what ought to be is still hugely important. As mentioned before Rothbard has a tendency to abstract subjects just in the way he pleases, in order to derive - from an apparent state of nature - an actual law which governs the relation among people - which as Hume warned - is not possible. Another opponent, George Moore, goes into more detail in his Principa Ethica - with the explanation of the naturalistic fallacy. Rothbard argues that it is in man's nature to pursue happiness and his most basic cravings (such as shelter, clothing, food, etc.). However taking hedonistic pleasures as a starting point to derive what is good (or ethical or the right thing to do) is problematic. As Moore points out it's impossible to derive good from any observation of what is. In other words you can't conclude from how the world is to what is good, because this always requires an assessment of goodness and hence must be arbitrary. Moore explains this fallacy in the example of deriving good from pleasure (although Moore calls theories which follow this conjecture naturalistic ethics rather than a naturalistic fallacy - his example still shows the problem when deriving what's good from what's pleasurable):

That "pleased" does not mean "having the sensation of red", or anything else whatever, does not prevent us from understanding what it does mean. It is enough for us to know that "pleased" does mean "having the sensation of pleasure", and though pleasure is absolutely indefinable, though pleasure is pleasure and nothing else whatever, yet we feel no difficulty in saying that we are pleased. The reason is, of course, that when I say "I am pleased", I do not mean that "I" am the same thing as "having pleasure". And similarly no difficulty need be found in my saying that "pleasure is good" and yet not meaning that "pleasure" is the same thing as "good", that pleasure means good, and that good means pleasure. If I were to imagine that when I said "I am pleased", I meant that I was exactly the same thing as "pleased", I should not indeed call that a naturalistic fallacy, although it would be the same fallacy as I have called naturalistic with reference to Ethics. (G. E. Moore, 1903, Principia Ethica § 12)

It's surprising that this specific critique remains unanswered in Rothbard's Ethics of Liberty. Even arguing that humans should be allowed to pursue their desires, that they should be allowed to or encouraged to pursue happiness is a normative statement. While this is obviously a weak argument in itself (I think I speak for most of us when I say the freedom to pursue happiness is very important) it precisely uncovers that Rothbard's theory - despite being allegedly purely derived from logic - relies on a fundamental normative assumption: that humans should be free to pursue their desires (many religions, namely Christianity, for example hold a very different normative paradigm: that humans should live to serve god). This normative assumption alone is enough to dethrone Rothbard's theory as being any kind of law on the same level as a "natural" or physical law. Rothbard attempts to gloss over the apparent normative nature of his theory (which inevitably makes it just another ethical theory, albeit one being based on a naturalistic fallacy) by introducing his own concept of an axiomatic law, which - so he apparently hopes - removes the normative blemish from his theory:

In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation. 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 in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one's life takes on the stature of an incontestable axiom. (p. 32ff, Rothbard, 1998)

What Rothbard has cleverly done here is simple: Allowing humans to pursue what is in their own interest is not presented as a normative proposition but rather a law derived from nature. Because any human - according to Rothbard's argument - must inevitably be affirming life for if a human would not affirm his own life he would immediately kill himself (or at the very least cease to breathe). While during a quick read-through of Rothbard's theories this might seem like a conclusive theory, it is in fact not. Rothbard arrived at the non-normative status of his axiom again by abstracting the concept life to the point where it is simple for him to prove his initial stance. Unfortunately for Rothbard he has abstracted too much this time. So much in fact that all that is left from the conjecture about life - with which he tries establish his theory as natural law - is a simple tautology. Humans which are alive must be affirming life. Which is basically the definition of any living thing: All living things, which are affirming life, are what we call "alive". Being alive and affirming life are the same thing - obviously nobody can argue that he is not affirming life when he is in fact alive. There is absolutely no new insight, no new truth, that we can gain from this so called axiom and hence any derivation from this claim - that the "preservation and furtherance of one's life takes on the stature of an incontestable axiom" - is not incontestable at all. It's a simple normative statement - albeit based on a ridiculously pompous and tautological conjecture. Without losing any (circular) reasoning, Rothbard's axiom could be easily rephrased to say: "If a person is not dead, he or she has the right to perform any action and appropriate any unclaimed property which preserves and/or furthers his life." - which is a fine ethical statement - but alas nothing more.

Just like all modern-day chemists have given up on the transmutation of lead into gold, Rothbard should accept the logical fallacy in his theory and give up on his attempt to deduce natural laws - which govern basic liberties - from reason and the state of nature alone. The liberal conscience in the world has come under scrutiny recently and more than ever do we need people arguing for sensible, reasonable and relatable ethics of liberty and not some outlandish demands by maximalists which on top of that claim to overturn centuries of scientific work conducted in moral philosophy. Some ethical principles which follow from Rothbard's initial and faulty conjecture may very well be very reasonable and great for the liberal cause. But we must confess that there is no such thing as sacred and divine property rights - the argument for an absolute property right remains normative until this day.

With this conclusion I think I may leave the topic of anarcho-capitalism and focus on more serious matters. I leave you with the following two treats written by Hans-Hermann Hoppe in his introduction to The Ethics of Liberty:

Hans-Hermann Hoppe - Introduction to The Ethics of Liberty, xxxix :

This and Rothbard's own life-long cultural conservatism notwithstanding, however, from its beginnings in the late 1960s and the founding of a libertarian party in 1971, the libertarian movement had great appeal to many of the counter-cultural left that had then grown up in the U.S. in opposition to the war in Vietnam. Did not the illegitimacy of the state and the non-aggression axiom imply that everyone was at liberty to choose his very own non-aggressive lifestyle, no matter what it was?

Much of Rothbard's later writings, with their increased emphasis on cultural matters, were designed to correct this development and to explain the error in the idea of a leftist multi-counter-cultural libertarianism, of libertarianism as a variant of libertinism. It was false - empirically as well as normatively - that libertarianism could or should be combined with egalitarian multiculturalism. Both were in fact sociologically incompatible, and libertarianism could and should be combined exclusively with traditional Western bourgeois culture; that is, the old-fashioned ideal of a family-based and hierarchically structured society of voluntarily acknowledged rank orders of social authority.

Hans-Hermann Hoppe - Introduction to The Ethics of Liberty, xl:

Further, upon child birth, a mother (and with her consent parents jointly), would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually-agreed price (p. 104). So long as children have not left home, a parent: does not have the right to aggress against his children, but also the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child . . . but the parent should have the legal right not to feed his child, i.e., to allow it to die.


References:

(1) David Hume - A Treatise of Human Nature (1739):

In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention would subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceived by reason.

(2) Hans-Hermann Hoppe - Introduction to The Ethics of Liberty, xxxiv:

This line of reasoning is indeed characteristic of a wide-ranging group of political philosophers (including Rawls) who, while they may disagree among themselves on how much conflict can or cannot be resolved in this way, all conceive of ethical principles as the result (outcome) of agreement or contract. It is here that the fundamental error lies and Rothbard's unique contribution to ethics comes into play. Ethics - the validity of the principle of self-ownership and original appropriation - is demonstrably not dependent and contingent upon agreement or contract; and the universality claim connected with Rothbard's libertarianism is not affected in the slightest by the circumstance that moral discussants may or may not always come to an agreement or contract. Ethics is the logical-praxeological presupposition - in Kantian terminology: die Bedingung der Moeglichkeit - rather than the result of agreement or contract. The principles of self-ownership and original appropriation make agreement and contract - including that of not agreeing and contracting - possible. Set in motion and stimulated by the universal experience of conflict, moral discussion and argument can discover, reconstruct, explicate, and formulate the principles of self-ownership and original appropriation, but their validity in no way depends on whether or not this is the case, and if so whether or not these formulations then find universal assent. Rothbard's distinct contribution to the natural-rights tradition is his reconstruction of the principles of self-ownership and original appropriation as the praxeological precondition-Bedingung der Moeglichkeit - of argumentation, and his recognition that whatever must be presupposed as valid in order to make argumentation possible in the first place cannot in turn be argumentatively disputed without thereby falling into a practical self-contradiction.

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