Rothbard's Liberty Reviewed; J. Hospers

THE long-awaited capstone to Pro fessor Murray Rothbard's series of books on political economy has at last appeared. His earlier two-volume work, Man, Economy, and State, was a systematic defense of free-market economics. His Power and Market was a defense of laissez faire capi talism against numerous objections. The present volume contains his poDr. Hospers was the first Libertarian Party candidate for President of the U.S. (1972). He is the author of (among others) two recent books, Understanding the Arts (Prentice-Hall, 1982) and Human Conduct (Har court Brace, 1982). 468 litical-Iegal philosophy. The word "ethics" in the title is not quite ap propriate, since the author does not attempt to discuss matters of good and bad, right and wrong; what he does undertake to discuss is what kind of actions should be prohibited and why. The Natural Law Tradition The first four chapters give an all too-brief account of the philosophi cal underpinnings of the political philosophy that follows. The author anchors his views in the "natural law" tradition set forth most force fully by Thomas Aquinas, but devel oped here without Aquinas' theolog ical framework. The crucial terms here, "man's nature" and "natural law," require more analysis than the author gives them. Just as it is catROTHBARD'S LIBERTY REVIEWED 469 nature to purr, dog-nature to bark, and the nature of both to prowl, so it is man's nature to use his rational powers: to form concepts, to inte grate them, to make decisions, to plan for the future.

Many questions arise, however, as to the meaning of the word "nature" in this context. (1) In one sense, "the nature of X" means whatever char acteristics are defining of X; thus, the "nature" of gold is stated when one lists the characteristics which define gold, those without which something would not be gold. Out of this arise numerous philosophical questions, such as the difference be tween "would not be gold"and "would not be called 'gold,'" and with it the whole question (not discussed here) of whether all definitions are lin guistic conventions or whether there are in some sense "true definitions." (2) In any case, the phrase "the na ture of' is generally used more widely than to include only defining char acteristics. "It is in the nature of cats to purr" could still be true even though some cats never purr, while yet continuing to be cats. Similarly, a person may be or become a "hu man vegetable" while yet remaining a human being. (This is the basis for the defense of a biological definition of "man" in terms of physical fea tures that distinguish human beings from all other animals-a kind of definition Rothbard does not discuss.) In any event, I believe that the phrase "the nature of," at least when applied to livirig things, is used to refer to fundamental dispositions to act and respond in certain ways. To call them dispo$itions is not to imply that they will always be actualized: to say that lions are disposed to hunt (whether or not this is defining of lions) is to say that they as a species possess this tendency, even though (as when they are fed all their meals in a zoo) they qever actually exhibit hunting-behavior. And to call them fundamental means that other dis positions can oe explained in terms of them: thus, :$ergson's definition of man as "the laughing animal" may uniquely identify man, ",but is less fundamental tHan the definition "the rational animal," since if a person lacked the intelligence to appreciate a humorous situation he would not laugh.

The term "rational" is a some what slippery pne, as illustrated by countless questions in ethics such as "It may be right to rescue a child from a burning building, but is it rational?" One manifestation of ra tionality, but inot the only one, is presumably reasoning. But even this relatively cle~r component of "rea son" is not cle'lrly unique to the spe cies we call man: Don D. Davis has given considerable evidence in his book The Unique Animal that some other creatures, such as chimpan zees, have the capacity to engage in 470 THE FREEMAN August elementary forms of reasoning. For this reason he defines man in terms of (1) the ability to symbolize (to de cide to assign a relationship be tween two dissimilar and previously non-contiguous events), and (2) the ability to hypothesize (to propose a relationship or connection between two or more non-contiguous events). No other creature on earth, he says, has these two abilities.

Neither does the term "natural law" bear its meaning on its face: it is conceived quite differently by those in the tradition ofAquinas from what it is by certain contemporary legal scholars, e.g., Theodore Benditt in Law as Rule and Principle. The con tent of what is allegedly known by insight into "natural law" is far from clear. Rothbard's example of wanton killing (at least within the tribe) being wrong is an unusually safe one: this is one of the few examples of a moral rule that would be upheld in virtually any society and on practi cally every ethical theory; in any case, a killing that one would wish to defend would not be called "wan ton," just as a killing that one con sidered justifiable would not be called "murder." But when we leave these "safe" examples, what specific rules of conduct does natural law enjoin or prohibit? Does it permit adultery? abortion? euthanasia? Does it insist on "one husband, one wife"? Does it prohibit cruelty to animals? It is far from clear what tenets allegiance to "natural law" commits one to. Nor will any reference to "an objective moral order" (p. 11), at least without coming to grips with the many over lapping meanings of "objective" in this context, help to fill the gap.

All Rights as Property Rights Then follows a lengthy discussion of rights. The term "a right" is nei ther defined nor distinguished from related terms such as "a liberty," but the philosophical literature on such definitions and distinctions is al ready endless. Instead, Rothbard comes at once to his most original and distinctive thesis: that all rights are reducible to property rights. For example, a person does not have the right of freedom of speech on anoth er's property, e.g., to shout "Fire!" in a crowded theater or to shout ob scenities in a cathedral. Most wri ters who insist on freedom of speech as a right have not been much both ered by considerations of property, and Rothbard" "sets them straight" with clarity and elegance. Whether free speech is limited solely by property rights, as Roth bard contends, will be a matter of continuing controversy. For exam ple, (1) courts have held that distri bution ofleaflets in a company-owned town should be permitted even though the company objects, be cause of the importance of the dis semination of knowledge and opin1982 ROTHBARD'S LIBERTY REVIEWED 471 ion. Nor would everyone agree that all forms of speech, even on one's own property, should be permitted: (2) If you gather a group together on your yard, across the street from a fac tory, all shouting "Burn the factory down!" most courts would call this incitement to riot (as did Mill), al though Rothbard contends (p. 80) that" 'inciting to riot' is a pure ex ercise of a man's right to speak."

Questionable Premises In order to preserve the thesis that all rights are property rights, Roth bard must interpret the concept of property in certain ways which, ac cording to some critics at least, in volves making square pegs try to fit round holes. Thus, (1) since crimes against persons (murder, rape, bat tery, etc.) are to be condemned as much as crimes against property such as burglary and theft, one must ac cept the Lockean view that "every man has property in his own per son." But many writers have argued at length that ownership is a rela tion between a person and some thing other than that person, in which case one cannot speak of self ownership. Moreover, (2) There are some kinds of activity which the laws of vir tually every nation have declared punishable although they do not fall under the heading of property, such as libel, slander, and blackmail. One's reputation, says Rothbard, is not one's property, and thus anyone should be fre¢ to say about you whatever they [ike. By contrast, vi olation of pateit and copyright is a violation of ot;le's property rights (one's right to reap the fruits of one's labor) and should be prohibited.

Many persons will not see that sharp a difference between the two classes of offenses. Even though the book you have written is your property and your reputatio~ (as opposed to your character) is not, allegations falsely made about you by others may cause you greater harm (e.g., the loss of your job) than [oss of your material possessions. And it could reasonably be contended that all infliction of harm on one iperson by another should be forbidden. ... a man may rightly come to own previously unowned land by "mixing his labor" with' it. Rothbard defends the Lockean view on property rights in land: that a man may rigl1tly come to own pre viously unown~d land by "mixing his labor" with it - "the homestead principle." (G~orgists allege that persons may own the crops grown on land but not the land itself, which is of course an invitation for govern ment to clai$ ownership of the land - a posiition against which Rothbard argues effectively.) Many persons who would agree that one 472 THE FREEMAN August should own previously unowned land if he clears the forest, tills the soil, and plants crops on it, would not agree that he should own it if by ac cident he has merely found some thing (e.g., valuable minerals) on it.

Rothbard argues effectively against this position as well: if the finder has no right to it, who does? But there are many other cases, which he does not discuss, in which the answer is not so clear. (1) What if a man does nothing to a piece of wilderness land but chooses to keep it in its wild state, defending it against trespassers with guns or trained dogs? (2) What if he runs around a piece of land twenty times without stopping? Has he "mixed his labor" with it then? (Need it be "so cially useful" labor like agricul ture?) (3) What if he does nothing to the land but purifies the polluted air above it? Does this entitle him to nothing? (4) What of riparian rights? How is the dispute to be settled be tween residents of California and Arizona as to whether both may use the waters of the lower Colorado River? Can anyone take what he likes where he likes, or can a man own a section of the river and drain it all off for himself, so that there is only a dry bed downstream? (5) Can one own a section of ocean by fishing in it or traversing it with a boat? Or, to use Robert Nozick's example, if a man owns a can of tomato juice and pours it into the ocean and waits till it has dispersed, can he claim own- ' ership of the ocean (provided it was previously unowned)? (Rothbard discusses some aspects of ownership of bodies of water in his Power and Market.) PossibleExceptions Even over what is clearly one's own property, one does not have the right of unlimited use or control. A man does not have the right to lure peo ple onto his property, kill them, and bury the bodies in the basement.

This, of course, violates their right to "property in their own persons." There are many other problems about what you may do with your house or yard: may you surround it with a moat containing piranhas, or set up an electrified fence that will kill at tempted trespassers? May you build your house uphill from another, so that when the rains come the prop erty below will have mud slides? Do policemen have the right to enter the property "on suspicion"? Rothbard says that if they do enter it and don't find the evidence that will incriminate, they should them selves be subject to arrest. I submit that if policemen were hamstrung by such a requirement, few crimes would be solved: that in the inter ests of finding the guilty party the owner does not have the right to forcibly evict them, and even if it turns out that the suspect is not guilty they should not be subject to 1982 ROTHBARD'S LIBERTY REVIEWED 473 prosecution for making a reasonable mistake. If the guilty party is not Jones but Jones' identical twin, should policemen really be prose cuted for stopping and searching J ones in the reasonable belief that they are apprehending the twin?

Nor, I would add, should a man have the right to use his property in such a way as to expose others to unreasonable risk. Should you be permitted to raise poisonous snakes in your back yard in the city? Is it really necessary for neighbors to wait until one of them has been bit? A person, as the owner of his own body, may take any kind of risk for him self alone; but the exposure of others to risk is surely a proper matter for legal prohibitions. Should a man be permitted to manufacture atomic bombs in his basement? or poison. gas? (One wonders whether Roth·· bard would use the criterion of neg·· ligence or that of strict liability in such cases-an extremely impor·· tant issue which remains undis·· cussed.) Laws regarding the transmission of property-by sale, gift, or be·· quest-are well discussed by Roth·· bard. If Jones' heirs claim property that has been seized from Smith and is now occupied by Smith's heirs, Jones' heirs have the right to dispos·· sess Smith's heirs of it, minus what·· ever movable additions and im·· provements Smith's heirs have made to it. The conditions under which Jones is entit,led to be an owner, however, are hot always so clear.

Should the present inhabitants of the United States be required to return the land to the Indians, who had it first? Or should such claims be de nied on the ground that the Indi ans-most North American Indi ans, at any rate-did not really reside in a certain place and grow crops there, but were nomadic, wandering about from one area to another, staying in one:place only as long as the hunting and fishing was profit able and then moving on? Hunting requires labor; does that labor con stitute ownership-of the animals only, or of the land as well? The Right of S~lf-Defense That a person has the right of self defense against aggression (as well as the right to defend others against aggression ifhe chooses) seems clear enough. What:is less clear is the ex tent to which· he is entitled to re spond to threats of aggression. If a man looks at you threateningly and moves to pull but what you think is his knife, have you the right to take a pessimistic view of his intentions and attack him first (the "pre-emp tive strike" problem)? Since most threats are not followed through, you presumably have no right to kill a man just because he says "I'll kill you," but at what point do you have the right to kill him, under the heading of self-defense?

474 THE FREEMAN August These are important and trouble some questions to which neither Rothbard nor anyone else has pre sented clear-cut answers. But I would make the point that it is not neces sarily physical aggression or threat thereof to which one's right to self defense is limited. If a man contin ually baits you, calls your wife a whore, or shouts that he has just raped her, and you finally take a swat at him, are you guilty because you started the physical fight? Might he not be called the initiator even though his aggression was only ver bal? This is surely clear in the case of theft: you catch a man stealing your tape-recorder and you forcibly take it back from him. You started the physical confrontation; he was only peacefully taking what belongs to you. The same point could be made concerning trespass-and possibly also the breaking of contracts. There are many forms of aggression,' and many proper (and many improper) forms of retaliation.

That punishment should be "pro portional to the offense" is a princi pIe Rothbard defends at some length, and quite rightly: you shouldn't be permitted to shoot dead the neigh bor boy who is stealing a water melon from your garden. But there is much dispute as to which offenses are the most serious and therefore merit the most serious punishment. Offenses against a person aren't al ways worse than offenses against Most troublesome of all are those cases in which damage or injury has been inflicted but the inflictor had no guilty intent. property-many people would rather be mauled or lose an ear lobe than lose a precious heirloom or their cache of gold. Most troublesome of all are those cases in which damage or injury has been inflicted but the inflictor had no guilty intent. Cases of accidental injury or damage are far more fre quent than those intentionally ad ministered, and the criteria for pun ishment much less clear. One wonders what Rothbard would do with "Typhoid Mary" cases: the women were carriers of a lethal dis ease, and communicated it to others by their mere proximity. The carri ers were guilty of no criminal act, but were nevertheless incarcerated for life because of the constant dan ger they represented to others. From the point of view of social utility, such incarceration was surely justified; but Rothbard, not being a u,tilitarian, would not accept such justification.

Yet from the point of view of crimi nal desert, there was no guilt at all, no guilty act which would constitute a just basis for such incarceration. To Be Taken on Faith In general, Rothbard's conten1982 ROTHBARD'S LIBERTY REVIEWED 475 tions on the many matters he dis cusses will seem most plausible to those who already have some knowledge of free-market econom ics. His statement of libertarian ax ioms and the consequences thereof will not be likely to carry conviction by themselves. Two examples must suffice: (1) If you had reason to believe that Rothbard's views about ownership of land would have as a consequence that most land-ownership would be·· come concentrated in the hands of a few owners, with the mass of people working for the owners, you might be less ready to accept Rothbard's views on the acquisition and trans mission ofproperty rights. You would be most likely to go along with his view if you had already been con vinced, through empirical consider ations (such as history), that such a result would not occur. (For exam ple, it was Gabriel Kolko's Triumph of Conservatism that convinced me that ownership without government regulation would result in the dis persal of ownership rather than its centralization in the hands ofa few.) (2) Ifyou believed that laissez faire would make a considerable portion of the population poorer even though it made some richer, you might well think twice about the acceptability of laissez faire: only after you had been shown by historical evidence that "a rising tide raises all boats"

would you be inclined to accept it. A philosophy in which liberty was the paramount value (as in Rothbard) alone would not do it: "What good is liberty to a man if he's starving?" you might say.' You would first have to be convinced that under laissez faire fewer people (or none) would starve than in any other economic system; only tHen would you be ready to accept the ,system. Doctrines of natural rightsi and property owner ship alone would not do it. In Quest of Justice Even so, m~ny persons will not follow Rothbard all the way in the way he traces! out his philosophy of liberty. In Rothbard, for example, a person should not be coerced into doing anything as long as he has not treated others ~oercively. He is quite consistent with this principle when he alleges that no one should be forced to do juty duty or appear as a witness at sOIneone's trial, even if his testimony would save the defen dant's life. There should be no power of subpoena, for subpoena means coercion of the innocent. Even the defendantneeQ.not appearat his own trial. Rothbarij is certainly consis tent with his bwn stated principles here, and does'not shrink from their consequences. 'Nevertheless the con sequences might be such as to lead one to re-thinlr or qualify the prin ciples. Many persons, including many of Rothbard's fellow libertarians, are convinced that the most important 476 THE FREEMAN August factor in the case is the determina tion of guilt or innocence of the de fendant-and that if a witness would be inconvenienced by appearing, he should nevertheless be required to appear, in the interests ofjustice.

Any voluntary exchange of goods or services (even lethal drugs), should be permitted, says Rothbard. If a blackmailer says to you, "I'll tell ev eryone your best-kept secrets, and thus cause you to lose your job and so on, unless you give me $10,000," this, says Rothbard, is a voluntary exchange, agreed to by both parties, and should not be prohibited. What Is Voluntary? In all this I fear that not enough attention has been given to the meaning ofthe term "voluntary." The fact that both parties agree to it is not enough to make it a voluntary transaction. For one thing, (1) coer cion may be involved in the agree ment, and when it is coerced it is not voluntary. Rothbard grants the coercion in the case of a robber who holds you up at gunpoint and says "Your money or your life" (though even here you have a choice, how ever unpleasant); he does not grant that coercion exists in the case of the blackmailer.

But there are other things besides coercion that can make an "agree ment" less than voluntary, such as (2) extreme forms of psychological pressure. If a man is starving and he is told to sign a contract for labor for the next ten years at 10¢ an hour in return for a crust of bread now, and he agrees, is the agreement vol untary? If there is widespread un employment and the only way a man can keep his job (there being no oth ers in the area which he can obtain) is by agreeing to a homosexual tryst with the boss, is that agreement vol untary? I would add that (3) having knowledge relevant to the case is also necessary: if the physician says to the prisoners "You'll all get out early if you let yourselves be inoculated with this vaccine," but doesn't tell them that the vaccine will have en during painful side-effects and may even kill them, is their agreement to the experiment voluntary? Any presentation of a philosophy of vol untarism, such as Rothbard's, must be extremely careful to state the conditions under which an agree ment, though assented to, is not vol untary. I would contend that the prisoners' agreement is not volun tary, since (as in cases offraud) they would not have consented ifthey had known the full facts of the case.

Just as Rothbard oversimplifies the concept of voluntariness by consid ering any arrangement voluntary if it is agreed to by both parties, so he oversimplifies (in my opinion) the concept of freedom by saying that a person is free as long as he is not coerced by others. (He is surely right, 1982 ROTHBARD'S LIBERTY REVIEWED 477 however, in taking Hayek to task for mixing up the concept of coercion with other ingredients.) One is weI·· come, of course, to use the word "freedom" to mean simply absence of coercion, but it is worth pointing out that in our actual discourse we regularly use the terms "free," "freedom," and "liberty" to include much more than this. ... the most general meaning of "freedom" is lack of constraint upon one's actions, and many things be sides coercion can constrain. I suggest that the most general meaning of "freedom" is lack of con, straint upon one's actions, and many things besides coercion can con strain: coercion is only one (rather extreme) case. If a man is a compul sive gambler and through psycho therapy is rid of this tendency, he may quite rightly say that he is now free from his addiction, although no one was coercing him. (There are countless such cases of what psy chologists call "internal compul sion.") If a woman obtains a divorce from her husband, she can now say that she is freed from her marriage bonds. Moreover, we are not only free from constraints of various kinds (negative freedom), we are also free to do certain things (positive free dom). The two are closely related: if I am free from the chains that bound me, I am free to walk about as I please. What others have called pos itive freedom) however, Rothbard does not call f~eedom at all.

If a man is i starving on a desert island, Rothb~rd would say that he is free because no one is coercing him; if a mountain climber has fallen into a crevasse, and. has no option but to wait for help! to arrive, Rothbard would say the :same, although there is clearly a difference between this man and one! who is able to walk about, a differ~nce which most of us would describe as the difference be tween being free and not being free that is, free to do things which the unfree person cannot. As we con stantly use th~ word "free," freedom does have something to do with the availability of options open to us in general, the!more options, the freer we are-alth(>ugh this very major ingredient of our ordinary concept of freedom is entirely excluded by Rothbard when he defines freedom in such a way:as to cut all this off. Utilitarianism!Challenged Throughout: his treatment of these issues, RothQard attacks utilitar ianism. In my: opinion he is justified in doing so utilitarianism would, for example,~ondemn an innocent person to deat\l if thereby some great social good (st).chas great happiness for others) could be realized. But this does not justify him in occasionally 478 THE FREEMAN August mischaracterizing the theory he is opposing. In Rothbard's example of the government officials who dis solve their government but as their last official act distribute all prop erty rights in the nation to the Rockefellers and Kennedys of the realm, he says that this distribution would have· to be accepted by utili tarians as a de facto accomplish ment. But it would not. Nor would the utilitarian view necessarily be the one Rothbard attributes to it in the other example he cites.

Utilitarians are committed to only one thing, that the sum of the con sequences of one's acts be the best possible when viewed in their total ity-and the best consequences might well occur not from recognizing such claims but by denying them. In each case, one would have to examine each possible alternative and see which one was likely to result in the max imum amount of happiness (or well being, or want-satisfaction, or what ever state is held by the individual utilitarian to be intrinsically good). It is not even necessarily true ac cording to utilitarianism that it would be better to save two lives rather than one: if greater total hap piness would result from saving the one (e.g., if he were an Einstein, or if the two had a predominance of misery in their lives), then the one should be saved: all that is required is that the greatest possible intrin sic good be achieved by one's action.

Even Bentham's stock formula Hthe greatest good of the greatest num ber" is inaccurate, for it sounds as if the happiness of the greatest num ber is to be preserved at the expense of the smaller number, whereas in fact everyone is to count in the total, the smaller number never being ig nored but often being outweighed. Indeed, the wishes of a minority should (according to utilitarianism) sometimes prevail, e.g., if the grant ing of their wishes produced in the long run a higher total of happiness (including, of course, less unhappi ness) than the granting of the wishes of the majority. The Need for a State There are policemen to enforce the law, and judges to interpret it. It would seem that there must also be legislatures whose function is to make the law. And doesn't all this require a government, a State? The State must be limited to a few essen tial functions, but isn't it necessary that a State, however limited, exist?

No, says Rothbard. Part 3 of his book is devoted to the extirpation of the State, root and branch. If to coerce people is to violate their rights, then the State as the No.1 coercer ofpeo pIe must be eradicated totally. The State is incompatible with liberty, because it (1) coerces individuals into conformity with its laws, whether or not they wish to obey (and even if they find certain laws stupid or im1982 ROTHBARD'S LIBERTY REVIEWED 479 moral), and it also (2) pays for its activities through the power to tax, that is, to take money earned by in dividuals without those individuals' consent, which is theft. How then are the rights of indi viduals to be protected without the State? Individuals voluntarily band together for their mutual protection into "defense agencies," in which other individuals are hired to pro tect their lives and property. These agencies are associated with "ar bitration agencies," to decide the guilt or innocence of accused aggres sors. The entire process of protection of rights could, according to Roth bard, proceed without the State, and much more justly and efficiently.

Anarchyvs. Law These contentions open up once again the long-standing dispute among libertarian theorists be tween anarchy and limited govern ment. The main arguments and counterarguments have been ban. died. about for so long that it would be tiresome to repeat them all here. (See, for example, Rothbard, For a New Liberty, vs. John Hospers, Lib ertarianism.) Given that an individ ual has a right to protect his person and property against aggression, it is quite a different question by wha.t means he can best do this - this would seem to be a matter of strat egy rather than of principle. It is true that the State currently does this through its power to tax, which is coercive. Some would say that for such necessary purposes a degree of coercion is ju~tifiable; others would try to work out (as some have) meth ods of voluntary contribution to sub stitute for c(j)mpulsory taxation.

Whichever solution is adopted, sev eral considerations. could be ad vanced for preferring a single power, such as the St~te, to a set of compet ing agencies hired by individuals. I shall briefly. ~ummarize only a few of them here. Chaos and Conflict 1. To havel competing agencies working in tle same geographical area would lead to chaos and conflict the moment they attempt to enforce different rules. And it seems to me virtually certain that this is what they would do, Different people have different ideals, and some of these ideals are held so strongly that their proponents would gladly use force to inflict them on others. This may be unfortunate, but as a feature of hu man beings it: seems to me quite in eradicable. In the Bible belt, many persons (perh~ps the majority) would gladly pay dues to agencies to en force the clo~ing down of X-rated movies and "a.duIt bookstores," per haps even arl!esting people for com mitting adultery or failing to be lieve in the literal inspiration of Scripture. Others would form an agency to protect themselves against 480 THE FREEMAN August all those who in their opinion consti tuted threats to "the morality of the community" or "those moral rules which keep together the fabric of so ciety." Indeed, a group of murderers might form an agency "Murder Inc."