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[Journal of Libertarian Studies, 1977.]



Libertarianism — the political philosophy based on the concept of individual rights — seems to be an inherently clear, unambiguous position. Its fundamental principle, the principle that man's rights to his life, liberty, and property are noncompromisable foundations for human coexistence in society, seems to offer a sufficient basis for answering, or solving, all so-called social problems — as libertarian literature amply demonstrates.

There is, however, one threat to this seeming clarity: the debate between limited-government libertarians, headed by Rand, and anarchocapitalists, mainly influenced by Rothbard.

At first sight, the debate seems easily localizable. It seems to affect no fundamental principles but to involve merely a specific application of these principles. If one reads some of the literature written concerning this debate, the major impression each side give is that the other side is inconsistent, that he fails to understand what the commonly agreed upon principle of individual rights implies, and that once his inconsistency is indicated to him, he (or them) will change his (or their) mind. Surprisingly enough, this change of mind did not take place in the last decade, though some "conversions" did take place. Each side has its own arguments, and its own rebuttals of the other side's argument, and the debate seems to persist, not to die out.

Purpose

The purpose of the present article is to show that what seems to be a fundamental agreement concerning basic principles, uniting libertarians of both traditions, is, to a large extent, an illusion. The illusion is created both by the use of the same terminology (i.e., of individual rights), and by the fact that there exists a large core of agreement between the two camps — agreement concerning the principle of individualism. But this agreement is much less thoroughgoing than it seems.

More specifically, I will try to show that the "political" debate — what form should a free society take politically — anarchocapitalism or limited government, follows from much deeper, though undetected, disagreements. The most fundamental one is metaphysical: What kind of freedom does human nature allow — and to what extent is man unfree, or determined, in his actions?

This fundamental disagreement is reflected in a variety of derivative disagreements: Are values objective, as Rand claims, or are they inherently subjective, as Rothbard implies? Does the principle of individual rights follow from the principles of objective ethics, as Rand preaches, or does it follow from a second-order understanding of the objective moral principles that make possible individual, subjective, first-order value systems, as Rothbard presupposes?

Does the principle of individual rights, in any way, require for its implementation any preceding contract, and does it rely on any moral principle of the sanctity of promises and contracts, as is implied by Rand's philosophy? Or does it rely on the metaphysical concept of a free will, making the concept of "sacred contracts" superfluous? I will try to show that these questions divide the two camps, and that their legal recommendations, in specific cases, also differ.

Since I am not a subjectivist, I do believe that there is right and wrong in this debate. But I will not present any systematic argument to support any position in this article. I will do that in a separate article. In the present article, I only wish to point out that a proper understanding and resolution of the debate that at present divides the libertarian movement cannot stop at political examples and arguments. I must go right back to metaphysical premises and examine them.

An Example

To clarify my point, and make my later, more abstract arguments easier to follow, let us consider an example. I make a contract with you to exchange my dog for your hen. I gave you my dog. You now say, "Sorry, I refuse to give you my hen. I love it too much."

Clearly, you are morally in the wrong, and a just system of laws would imply just that, when applied to this case. But why are you in the wrong, what are your liabilities, and what is the way to right the wrong? Here Rand and Rothbard would differ. Since neither of them has ever considered in writing this specific example, I allow myself to represent their positions as I understand them.

To begin with, Rand would say that you are wrong because you have defaulted on a promise contained in a contract. You owe me a hen, because you have promised to give me one once you possessed my dog. Your debt has been incurred by your promise. This is a matter for a civil court, dealing with restoration of justice damaged by contract violation.

Rothbard, however, would say that you are in the wrong for a different reason. You don't owe me a hen. The hen is yours, and remained yours. As for the contract, your default amounts to a cancellation of it. The contract ceases to be valid once one of us refuses to abide by it.

"The Randist analysis of the nature of crime implies the necessity for a minimal government."

But if so, what makes you morally wrong? Simply the fact that you now control a dog that belongs to me makes you a criminal. Once you have, by refusing to fulfill your part of the contract, cancelled the contract, you have thereby cancelled your right to control the dog. If you continue to hold the dog, you are in the same category as a robber, or a thief. You control and use property that belongs to another without his permission, by force. Thus, the correct procedure to right the wrong is for me to sue you at a criminal court.

Observe the difference: For a Randist, a promise creates an obligation. You are free to make a promise. Once you have made it, you are not free, morally speaking, to default on it. A later decision cannot cancel the prior decision. Once you have promised to give your hen, when certain conditions have been satisfied, the satisfaction of these conditions transfers automatically the hen to me, from the point of view of the right to own it. If you refuse to deliver the hen, you are trying to detain the transfer of property that is already not yours. But the dog does belong to you.

For a Rothbardian, though, a promise does not create an obligation. A promise is a declaration of an intended action, or a declaration of a present decision to do something in the future. It has no moral significance beyond that. The same fundamental freedom of choice that makes it possible for you to promise makes it possible for you, later, to cancel the promise. You cannot be sued for canceling promises.

But on the other hand, for a Rothbardian, your property right cannot be transferred without your consent. Thus, if you give somebody a dog on the condition that you will get a hen from him, and he fails to deliver his part in the contract, the condition for transfer of ownership is not fulfilled, so the ownership has not been transferred (though the physical transfer of the good in question did imply a transfer in actual control of the property).

Thus, the injustice incurred by a contract violation is not that a promise has been broken. It is that a breach has been created between ownership and control and that that breach is maintained by force (because you refused to return the dog to me).

Observe that this creates practical differences between a Randist and a Rothbardian, concerning their recommendations to handle this case and other similar cases:

These are considerable differences between the two positions. But let us consider another example, this time of a noncontractual nature.

Another Example

Suppose I wake up in the middle of the night and find you there, rushing out of my window, with my watch at your hand. Obviously, you are a thief. Obviously, I should take you to some form of court or other. Obviously, you have initiated force against my right to my property. All these points are agreed upon by libertarians, as well as most nonlibertarians.

There is, still, however, a divisive question: on the basis of what authority (i.e., moral authority) do I take you to court? Do I have the right to make you compensate me without a court action? Does your action affect your rights? Here again, the Randist and the Rothbardian would markedly differ. The Randist (as Paul Beaird has most convincingly argued) would claim that by violating my property rights, you have lost your property right to the same extent. Moreover, your action justifies me in taking you to court, because by consenting to live in a human society, you have consented, in principle, to the fundamental principle underlying the possibility of human coexistence in society: the principle of individual rights. In a way, you have, by your action, breached a contract.

My appeal to court is necessary to restore justice, because your action has been a default on an implicit contract. I cannot, however, redress justice by my own action, because any contract has, as Beaird has indicated, a delivery clause and a recourse clause. Once you failed to deliver (by violating my right to property), the contract is still in force. In this case, the "implicit" contract between us allows me only to take you to the police, because you have consented, by being in this specific society, to be thus treated in the case of breach of "social contract."

Observe that this is not a social-contract theory. It does not assume that if we are all in a society that has some government or other, we are all to be considered to have implicitly consented to the rule of this government and to the authority of its laws. The social-contract theory, as Hobbes has shown by example, allows for all sorts of dictatorship and is incompatible with individual rights.

Nevertheless, there is an element of "social contract" here, in the following sense: individual rights are objective values, to be identified by human consciousness as necessary conditions for human existence in society. If one identifies these values, he thereby has to secure some means of safeguarding these values by subscribing, voluntarily, to a government that implements these principles — namely, a minimal government. This act of subscription (which, Beaird stresses, must be explicit and voluntary) binds contractually all subscribers — both to the principle of individual rights and to the authority of the government to which they have subscribed to administer justice in accordance with these rights.

Thus, any criminal violation of rights is a breach of such a contract, and it must be handled by the government, not by the victim. In other words, the Randist analysis of the nature of crime implies the necessity for a minimal government, which governs with the consent of the governed.

To put the issue more crudely, each crime is a case of contract violation. Individual rights are enforceable, as legal principle, only on the basis of contractual commitment to them. Thus, while individual rights have objective validity as values, they have no legal force without the consent of all concerned. In other words, if you did not subscribe to any government, your rights have not been "translated" to enforcible terms, and you have no right to use force (your own force) to defend them.

Rothbard, however, tells a different story, a story in which no concept of "social contract" plays absolutely any role, and in which individual rights have nothing to do with anybody's contractual subscription either to the abstract principle or (additionally) to a government enforcing it. Individual rights are natural, deriving from man's nature as a free being. A man has the right to his life, property, and liberty independently of whether or not he lives in a social context, subscribes to a government, or has made any direct or indirect contractual commitments with others.

Contractual commitment, as we have seen above, has no independent moral significance in Rothbard's framework. A breach of contract is only bad because it creates a breach of property ownership and its control — and only when it produces this effect!

Civil Law and Criminal Law

In order to clarify the difference between the two points of view, an extra bit of terminology is needed. This pertains, fundamentally, to the difference between civil law and criminal law.

Civil law usually pertains to offenses arising from contractual relations. A default in delivery on a commercial contract is usually dealt with by a civil court of law. Criminal law usually pertains to offenses against individual rights (such as theft, murder, robbery, rape, etc.) that do not involve any violation of preexisting contractual relations. What makes these offenses "bad" is their being violations of individual rights.

"Contractual commitment, as we have seen above, has no independent moral significance in Rothbard's framework. A breach of contract is only bad because it creates a breach of property ownership and its control — and only when it produces this effect!"

In terms of this distinction, Rand's position implies an implicit reduction of criminal law to civil law — in the sense that any violation of individual rights is conceptualized by reference to a preexisting social contract (between the subscribers to government and their government) that makes the violation punishable, or actionable. Rothbard's position implies an explicit reduction of civil law to criminal law: a contract violation is bad only because, and to the extent that, it involves dissociation of ownership and control.

This is a large difference, and it relates directly to the opposing views concerning minimal government. For Rand, the contract that makes individual rights defensible is a contract with a government. Hence, for her, libertarianism is impossible without a government: it presupposes a government, albeit a minimal government.

For Rothbard, individual rights are independent of any contract, they are natural, and the fundamental defense of them is by the individual himself. The marketing of defense services through defense agencies is not in any way a necessary ingredient in the implementation of rights. Rather, it is a special case of the principle of specialization of services on the market, and has nothing to do with the moral validity of individual rights, nor with their implementability.

Values and Metaphysical Freedom

What is the root of the disagreement between Rand's and Rothbard's positions? To answer that, it is important to understand on what basis each of them establishes the moral validity of individual rights. Rand's concept of rights derives from her particular theory of values. This, in turn, depends on her theory of man's metaphysical freedom. Similarly, Rothbard's position is ultimately defensible through recourse to his fundamental assumptions concerning values and human freedom.

According to Rand's theory of human freedom, man's only fundamental freedom, the sole domain in which he is capable of being a "first cause," the only realm where he can exercise absolutely unpredetermined choice, is his own consciousness. Man's basic choice is between identifying the facts of reality through an act of consciousness, or evading the knowledge of these facts.

This freedom does not extend to man's decisions and actions: Your decisions and actions are the necessary product of your values and premises, Rand claims. Your values and premises are the products of acts of identification. You identify, as a value, whatever sustains your life. You identify, as premise, any fact of which you are aware.

Thus, your values are the products of two factors: your needs, or requirements for survival, which are factual givens, over which you exercise no choice, and your readiness to identify and acknowledge these needs, over which you have voluntary control. But if you evade the knowledge of your needs, they still exist, and so are, objectively speaking, values, though they are unidentified values.

Rothbard's theory of man, however, assumes another dimension of freedom in man: the freedom to make decisions, to originate action. For Rothbard, values and their hierarchy are not the product of perception alone, though, clearly, his writing implies that awareness of the facts is highly relevant to your choice of values. (That is why you will prefer three ounces of gold to two ounces of gold.) But the ultimate source of values is your choices and there are no subject-independent (or "objective") factors that determine what your values should be.

Indeed, Rothbard does not assume, as Rand does, that your own life is necessarily your highest value. He leaves the question of what is your highest value outside of philosophical (and economical) discussion, to you. This, observe, is not subjectivism in the sense that values are arbitrary. It is subjectivism in the sense that the subject, not the external facts, is assumed to be the source, or generator of values.

"Rothbard is more extreme than Rand politically because he is more extreme than her metaphysically."

Consequently, it is impossible, in Rothbard's framework, to speak about any common values that are thereby established as objective moral principles. Rather, the principle of individual rights, in so far as any explicit formulation is to be given to Rothbard's implicit presentation, is established on the second level of value analysis. It is not a value in the economic sense; the question of the price of individual rights cannot arise, because the concept of price presupposes the concept of ownership, which presupposes the concept of right to property. It is, rather, established by reflection on the implications of man's metaphysical nature: as a fundamentally free agent.

For Rothbard, if I understand him correctly, individual rights are self-evident implications of the metaphysical nature of man for social coexistence. The argument is mainly by elimination. Clearly, somebody must decide what you will do: Why should it be, and how could it be, anybody else but you? Again, somebody must decide what to do with the property you have produced: How could it be anybody else but you?

The whole argument presupposes that action (including use of property) requires decision, and that there are no automatic solutions to the problem: What action shall be taken, and by whom? Thus, the question is who is to make the decision. In other words, man's fundamental metaphysical freedom to make decisions is a necessary component of the argument.

Hence, the argument does not require that other persons would either recognize my rights or pledge themselves to respect them. No social contract of any nature (and no preceding, large-scale comprehension of the philosophical principles involved) is presupposed in the defense of individual rights. Having the right to life, liberty, and property, you automatically have the right to defend these rights, and you only derivatively transfer the exercise of the right to a defense agency of your choosing.

Moreover, in view of the fact that all violations of your rights (including what Rand would have labeled "contract violation") are criminal, in all cases the purpose of defense is to reclaim stolen property (of goods or services or their equivalent). Hence, the consent of the offender is not required, because his rights are not violated in any way through the reclamation.[18]

Thus, the fact that Rothbard's libertarianism is more "extreme" than Rand's, because she consents to a minimal government and he requires abolition of all government, is not accidental. Neither does it arise because one of them (or any of their followers) has committed a trivial mistake in the understanding of agreed upon moral principles. Randists and Rothbardians are not libertarians in the same sense — though they talk a misleadingly similar language. They mean different implications in the concept of rights — because they have different metaphysical assumptions to back their endorsement of the morality of the principle of individual rights in the first place.

Rothbard is more extreme than Rand politically because he is more extreme than her metaphysically. Rand allows only freedom of consciousness. Rothbard also allows freedom of decision. The choice between the two positions cannot be consistently made on political grounds. It has to deal with the basic metaphysical disagreement, and to deal with certain corollaries of it as well, such as: Are there objective values? Are values determined solely by my decisions, or by my awareness of given facts?

Similarly, while for Rand a promise (and any other decision) is a necessary product of the totality of one's premises and values, and once it is made, it is a fact, which one can either identify or evade, so that the immorality of breaking promises reduces to the primary sin of evasion, for Rothbard a promise is a reflection of a free decision, and a decision is valid only till another decision supersedes it.

This article is excerpted from "Political Freedom and Its Roots in Metaphysics," Journal of Libertarian Studies, 1977, vol. 1, no. 3, pp. 205–213. Rothbard, Man, Economy and State, pp. 152–153. [9] Rothbard, Man, Economy and State, pp. 152–153.

[10] Indeed, one of the inherent difficulties of the concept of self-sale to slavery is the inability of the slave to continue to possess any personal property. If slavery means total obedience to one's master, how can a slave refuse an order to transfer his property to his master? [18] Rothbard, Man, Economy and State, p. 771.