Why Libertarians Should Read Mises
By Duncan Whitmore
In Part One of this series of three essays exploring the significance of Ludwig von Mises for libertarian thought, we examined the specific place that Mises holds in our tradition, and outlined the unique sophistication of his utilitarian theory in favour of freedom compared to that of other theories that can be grouped into this bracket.
In this part we will turn our attention to a detailed analysis of the action axiom – the keystone of Misesian economic theory – and its implications for concepts that we readily encounter in libertarianism.
Somewhat ironically, it was largely as a result of his influence that the wertfreiheit of Mises’ praxeology was regarded as a separate discipline from the search for an ultimate, ethical justification of liberty – a belief that was sustained by Murray N Rothbard.1 In more recent years, Hans-Hermann Hoppe has probably come closest to providing a link between the two through his derivation of “argumentation ethics” within the praxeological framework, and his identification of the pervasive problem of scarcity – a key praxeological concept – as underpinning any system of ethics.
Nevertheless, one may conclude that a full reconciliation, or synthesis, between the two is still wanting and that there remain other important commonalities to which this essay will seek to provide an introduction. Some of what we will learn below will have implications for a general understanding of right, and that the truths we reveal are inescapable for any political philosophy. Others will be specifically pertinent to libertarianism and will provide us with insights as to how we can further the libertarian goal.
The Action Axiom2
Mises derived the core of “Austrian” economic theory from the action axiom – the notion that humans act. Human action is purposeful action – that is, it is undertaken for a consciously chosen reason, an aim to bring about a desired result. This is in contrast to reflexive action, such as when you touch a hot plate and your hand recoils in an instant, or when you have a bout of hiccups. These are involuntary actions which we cannot help, occurring independently of our will. Human actions are also contrasted with the actions of dead/unconscious matter (which can only move in accordance with some kind of external inertia), and from the actions of animals, which – in spite of some of the humanistic qualities of the higher primates – are largely governed by uncontrollable instinct.
Although human actions are purposeful they need not necessarily be wise or undertaken judiciously with a cool head and, indeed, may be made either emotionally or carelessly. But to the extent that they are chosen deliberately they may be termed rational. It is this unique process of reasoning, enabling a human to choose his actions following a deliberation of suitability, which elevates humanity above the level of other animals, and categorises him as an eminently rational being.
In this regard, it is worth emphasising that human action is always the action of individuals – not of groups or collectives. The process of reasoning that leads to desire, choice and, ultimately action takes place within the mind of each individual human being. People may, of course, join groups and other collectives such as companies, sports teams and so on, which may be spoken of as having “decided to do X” or “wanted to do Y”. Yet these are simply metaphors for that which the individuals comprising the group agreed to do together. They do not mean literally that anyone other than an individual who was part of the group wanted to do or actually did anything.
The purposes to which all actions strive are designated by Mises as a person’s ends – what might be called, less formalistically, his wants, his needs, or his desires. Actions aim at changing one state of affairs into an alternative state of affairs – a state that is preferred to the state that already exists. For example, if I am in a state of being cold I may put on a jumper to bring about the state of being warm because I prefer being warm to being cold. If I am in a state of being hungry I may eat a sandwich in order to bring about the state of being satiated as I prefer satiation to hunger.
All actions aiming at ends must take place through physical space with physical matter – they are not ethereal, metaphysical or illusory but, rather they aim to make a concrete impact on the objectively viewable, physical reality. This physical matter which actions alter in order to bring about the desired ends Mises termed as means – the objects that we use in order to bring that which we want into a state of being. So, to use the same examples, if my end is to warm myself up then the jumper is the means of achieving that end; and if my end is to satiate my appetite then the sandwich is the means of doing so. Another term for means is goods.
An important derivative of the action axiom is that means are scarce relative to ends. An object will only be subjected to conscious action if the supply is incapable of fulfilling all desired ends. The action therefore aims to divert the means from fulfilling a less preferred end to fulfilling a more preferable end. For instance, if I have only one cake then I must choose whether to have that cake or to eat it. The supply of cakes is insufficient for me to fulfil both ends simultaneously. If I have only one flower then I cannot have flowers in both the garden and on my windowsill, and I act so as to either plant the flower in the garden or put it in a pot near the window.
If physical means are not scarce, however – that is, that their supply is greater than what is needed to fulfil all desired ends – then they are not subjected to deliberate action. The classic example is breathable air. Our bodies inhale and exhale without any conscious acknowledgment because there is an ample supply of air at the point of consumption to meet all of our needs today, tomorrow and forever into the appreciable future. On the other hand, air sometimes has to be captured or bottled for specific purposes (such as diving), and in this state it is scarce.
A corollary of this is that means – the physical goods that are subjected to action – are valuable. This value is manifest in the fact that if we were to lose a portion of the supply we would feel that we have lost something – we are now unable to fulfil some of the ends that we would have wanted to fulfil.
This value is derived from the value that we place on satiating the ends that the means would have been directed to. If I buy a sandwich then its value to me accords with the value I place on relieving my hunger; if I have a pen then its value will be derived from the utility of writing. Of course, the greater the supply then the less valuable each unit of a good will be. If I lose a pen then I can probably get another one at little cost; if, on the other hand, if I am lucky enough to own a Ferrari which someone promptly steals then my feeling of loss is far greater as Ferraris are much more scarce than pens. Breathable air, on the hand, is in such abundant supply that any one unit of air is utterly without value and no one would pay a penny to secure it.
Value, therefore, has nothing to do with the strictly scientific or biological importance a commodity may have to humanity. Without air we would obviously die whereas we can probably get along quite nicely without Ferraris, so, theoretically, air should be more valuable to us than Ferraris. However, air is so abundant that there is literally no need to care about it whereas the scarcity of Ferraris makes them the object of great desire.3
Scarcity and value are realisable enough at the isolated, individual level. Robinson Crusoe alone on his island would have to choose to act towards the available means to fulfil various ends in order to survive in his state of isolation. More importantly for human society, however, scarcity and value exist at the interpersonal level – an object may be scarce not because the available supply is unable to fulfil the ends desired by one individual, but because it is unable to fulfil the ends of many individuals.
For instance, I may only want one loaf of bread to fulfil one particular end; if five loaves are available to me then bread would not be scarce. If, however, there are ten people each wanting at least one of the five loaves then bread is now scarce and so we may each act to secure a loaf in our possession ahead of someone else doing so. It is the nexus of competing valuations and the resulting trade and exchange that produces the phenomenon of market prices, allowing us to make something of an objective appraisal of what a given object is “worth”. A Ferrari is more expensive than a loaf of bread because the supply of available Ferraris is relatively less able than the supply of available bread to satisfy the desires of all individuals who seek to possess these commodities.
The fact that humans continue to act, throughout their lives, in relation to means in order to achieve ends demonstrates that the condition of scarcity is pervasive, and that human existence is characterised by the fact that our desires permanently outstrip the supply of means needed to fulfil them. The entirety of economic progress consists of acting so as to increase our ability to produce more and more means available for consumption so that more of our ends can be satisfied.4
Another quality of action and, consequently, of valuations is that they always take place in whole, concrete steps rather than in infinitely small, mathematically measurable steps. For instance, if the temperature of my living room is increased by one degree each minute I will, at some point, become too warm and I will remove my jumper in order to cool down. However, this action occurs in one go – there is one, single point at which I act to counter the effects of being too warm and so the whole jumper comes off at once. I do not act at each rise of one degree by shedding proportional pieces of jumper progressively.
Similarly, one bottle of water may contain 0.99999 litres of water whereas another may contain 1.00001 litres. Yet, to me, they may each be regarded as interchangeable bottles of one litre each and I would be willing to pay the same amount of money for either – their equal ability satisfy my thirst is not changed by the fact that one contains an imperceptibly minute quantity of water greater than that of the other, and so there is no tiny difference in their value.
The valuations that motivate actions change over time. For example, I may desire a hamburger today but may be disgusted by the sight of one tomorrow. Today I might be willing to pay £10 for a cinema ticket, whereas tomorrow such a sum might be too expensive. Or, to go back to previous examples, today I might find that 21 degrees Celsius is too hot and I will remove my jumper at that temperature, whereas tomorrow I might find that a temperature as high as 24 or 25 degrees is tolerable even with my jumper on.
More extensively this means that the corpus of economic theory which Mises derives from the action axiom (plus a few other axioms and assumptions) consists of formal, qualitative laws rather substantive, quantitative laws. In other words, we can state laws about general, formal categories such as ends, choices, goods, prices, and their relationships – but we never know, for instance, precisely which goods will be economic goods, nor what their exact prices will be. We do not know precisely how much beef that Sainsbury’s or Tesco will sell today, nor how much pizza Domino’s will deliver. It is true that items such as beef and pizza are likely to always be regarded as economic goods and their prices may stay relatively stable, but this is only because human valuation consistently demands that they be so. If, on the other hand, everyone was to, say, turn vegetarian tomorrow then beef may cease to be an economic good and its price would plummet to zero.
For an example of such a formal, qualitative law we can say that “if the demand for an economic good rises while its supply remains constant, then its price will also rise”. In stating this law we are not saying anything about what the particular good in question will be – it could be butter, marmalade, newspapers, or Ford Fiestas. Precisely what has to be determined by the actual choices of individuals. Further, we do not know what the specific price of this good is going to be as this will be the outcome of the actual supply and demand relationship that prevails – it could be as low as 50p or higher than a million pounds. And (going back to our understanding that action proceeds in whole, concrete steps) we do not know by how much demand has to rise in order to push the price higher, nor do we know what the final price might be. Demand might continually rise and yet the price could stay the same until there is a sudden “snap” at which point the price shoots upwards. Finally, all of these magnitudes may change on another occasion to produce entirely different outcomes.
The realisation that a human’s actions, being determined by his volition and his free will, are irreducible to substantive and quantitative laws marks a major point of departure between “Austrian” economists and those economists or social scientists whose approach to the study of humans is the same approach towards the study of dead, unconscious matter.
The fallacy of such an approach – scientism rather than science – is clear from the fact that a piece of dead matter must always respond in the same way and in the same magnitudes to changes in the variables that compose its environment. For instance, water will, at normal atmospheric pressure, always boil at 100 degrees Celsius and freeze at 0 degrees. A human, however, may purchase an ice cream on a day when the temperature hits 30 degrees Celsius. But just because the same temperature is reached the next day it does not follow that he will purchase another ice cream – he may purchase two, three, or none at all. Of course, the temperature of the day may make it more likely that a human will choose to purchase an ice cream, and ice cream vendors may, as a rule of thumb, believe that a rise of X degrees typically results in an increase of Y ice cream sales. But the budding social scientist, having observed temperatures and ice cream sales, cannot take this outcome as an eternal law that is valid for the whole of time. Even consecutive days of the same temperature will see variations in ice cream sales.
It is for this reason why the study of past prices and statistical trends are part of economic history – phenomena that will not (necessarily) be repeated – rather than economic theory, whose laws are fixed and immovable. Estimating future prices and trends is the hallmark of entrepreneurship. Indeed, if it was possible to define goods and price relationships substantively then the future would always be certain and knowable, which is obviously not the case.5
Action and Libertarian Concepts
Having outlined the basics of the action axiom and some of its derivatives, what does this understanding have in turn for a better understanding of libertarianism?
A closer examination of the components of praxeology on the one hand and of the components of libertarianism on the other will reveal to us that all of these things are of the same ilk – and that, consequently, our understanding of libertarian concepts is sharpened by their praxeological counterparts.
The reason for this is that the entire edifice of political theory – that is, the attempt to formulate codes of interpersonal ethics – exists solely because we are all purposefully acting beings and that the purposeful actions of one individual have the potential to conflict with the purposeful actions of other. Political theory, therefore, is the attempt to resolve these interpersonal conflicts. The implications of political theory are therefore the same, or at least closely related to, the implications of praxeology. Let us explore these implications in turn
This clearest link between praxeology and political theory can be seen in the concept of a right. For a right is nothing more than the permission to perform a purposeful action – the legal ability to bring about a desired result. I have the right to eat a sandwich in my fridge to satiate my hunger; I have the right to open my window to let some air in; I have the right to step in my shower to get myself clean. Conversely, I do not have the right to enter my neighbour’s house; or to take his belongings; nor do I have any right to kill him.
Once we realise this, a whole new degree of understanding is opened to us simply by analysing the deductions from the action axiom and applying what we know from these deductions to libertarian concepts.
If rights consist of the legal permission to perform purposeful actions, then we can understand in an instant why it is that humans have rights while other beings and objects do not. We do not, for instance, speak of the rights of trees, of rocks or of most animals. As these objects and beings do not act purposefully, they have no conception of which states of affairs are “better”, “worse”, “preferable” or “valuable” and consequently every outcome is, to them, exactly the same. They have no need for rights because they have no consciously appreciated desire for one outcome ahead of another.
Another way of putting this is that, as deliberately chosen actions may be termed rational – the result of a process of reasoning – rights are the exclusive province of rational or reasoning beings and do not apply to animals or objects which are incapable of reasoning.
For instance, if a rock is tumbling down the hill then whether it is permitted to do so until it reaches the bottom or is stopped half way is, to the rock, neither here nor there. We do not speak of the “right” of the rock to tumble down the hill because the rock has no ability to reason whether reaching the bottom of the hill is in anyway “better” than any other outcome. Thus, if I stop the rock from falling down the hill it would be absurd to suggest that I have, in any way, breached the “rights” of the rock.
Similarly, a tree grows and seeks nutrients from the soil and air because it is so conditioned by nature. It does not do so because it “feels” better or decides for itself that this is the best course of action. If, therefore, I cut a branch off the tree and impair its ability to thrive, I have in no way “harmed” the tree from the perspective of that tree itself because the tree is incapable of forming a perspective – it is utterly devoid of any capacity to appreciate one circumstance or the other.
The fact that it is only rational beings that enjoy rights becomes clearer when we consider the flip side of rights – the ability to abide by duties or obligations. If my neighbour has the exclusive right to drive his car I have the duty to not drive his car, nor to interfere with his use of his car; as he also owns his body I have the duty to not stab him or otherwise harm him physically; as he has the right to his grocery shopping I have the duty to not take this shopping for myself. Just as a rational being must have the ability to choose the actions which he has a right to do he must also have the ability to choose to refrain from those actions which he does not have a right to do. Indeed, the endeavour to furnish a system of interpersonal ethics is itself, in the first place, a rational action – one must choose to formulate a code of ethics and one must choose to abide by them. The purpose of ethics is to resolve conflicts in a way other than what would happen purely according to the governance of ordinary inertia or uncontrollable instinct – ethics can neither be devised nor implemented without the ability to act rationally.
This does not mean to say that mechanisms for the enforcement of such rights are unnecessary and that we are wholly relying upon people’s good will to avoid breaching the rights of others. In fact, the majority of enforcement mechanisms – whether these are simply padlocks on a door or alarm systems all the way up to courts, judicial and policing services – serve to demonstrate the fact that ethics are the province of rational beings.
For example, in order to keep people out of your property, it is not necessary to erect a technically impenetrable barrier that no human can possibly ever cross. A padlock, for instance, could probably be picked easily enough or cut with a strong set of cutters; locked windows can be smashed. The reason why these devices are employed in spite of their apparent weaknesses is that they serve to raise the cost of trespassing to the point where people choose not to do so.
For instance, walking through an open door is easy; the expense, risk and time needed to pick a lock, on the other hand, is likely to be too great for most casual thieves. Thus even an inferior locking mechanism has served a purpose. Usually, of course, the sophistication of the security procedures is proportional to the value of the property that is protected. Bullion vaults, for example, require granite walls, special combination locks, armed guards, etc., whereas such provisions would clearly be ridiculous to protect the loose pennies in a child’s piggy bank.
All of this is in contrast to dealing with non-rational beings or objects, where only technically sufficient barriers will do. For instance, the roof of a house must be completely waterproof if the rain is to be prevented from leaking in. One cannot make the roof “slightly” or “mostly” waterproof and hope the rain will be “persuaded” to stay out.
Furthermore, it is the ability to choose one’s actions that endows an individual with moral agency and opens those actions to moral scrutiny – the fact that alternative paths could have been chosen leads us to judge an individual’s actions as either just or unjust, good or evil, wide or foolish, sensible or stupid, etc., relative to other actions that the individual could have performed.
To illustrate why the contrary does not hold, consider the situation where a rock falls off a cliff and is in danger of striking a person’s head. In spite of all of our best efforts it would be useless to attempt to persuade the rock to choose to avoid landing on a person’s head. Whether the rock moves and in which direction it moves are matters governed entirely by external influences. Thus, it would be ridiculous to speak of the rock having the “duty” to avoid striking a person’s head. Nor also can we speak of the rock having behaved “unjustly”, “badly” or “maliciously” or any other such epithets that are used to condemn immoral behaviour – for the rock has not, in any way, “behaved” at all. Preventing such an occurrence as the rock strike cannot be resolved by a system of ethics – rather, it is merely a technical problem that the acting human in danger of such a strike will have to solve, either by erecting a defensive barrier or finding the means necessary to secure the cliff from rock falls.
From the requirement of rationality, we can see also why it is that humans who possess an immature capacity for reasoning (or otherwise have had their rational capacity severely diminished) are endowed with rights and obligations to a lesser degree than fully capable adults. For instance, children, and those with severe mental disabilities that serve to disconnect thoughts from actions, nearly always have a significant proportion of their rights curtailed by any legal system and are not considered as being wholly responsible for their actions. Precisely where various cut offs should be are, of course, contentious issues – the most contentious question being the circumstances in which such beings could be lawfully killed. Abortion laws and laws concerning non-voluntary euthanasia will never cease to generate passionate debate. This is a theme to which we shall return later.
The attempt by a rational being to ascribe rights to dead/unconscious matter (or to obviously non-reasoning beings) is, in fact, a backhanded method of arrogating rights to himself. If one person has a right and another person has a duty to avoid breaching that right then it means that one person’s ends – i.e. his desires, his preferences – will triumph while another’s must yield. If, for example, Smith and Jones each want to sit on a chair which will fit only one person, then if a right is granted to Smith to sit on the chair that right will vindicate Smith’s desire while the particular desire of Jones to sit on the chair must remain unfulfilled.
If, however, the object or being that is said to possess a right is non-reasoning, then it has no ends at all – no preferences, no desires, no wants – and so whatever outcome results from a vindication of the “right” is, to this object, neither here nor there. Consequently, the determination of whether the consequences flowing from a vindication of the right are beneficial must reside in the mind of an actually reasoning being – and so it is this, latter being that really possesses the right.
For instance, let’s say that Smith wishes to cut off some branches from a tree. Before he can do so, however, Jones comes along and argues that the tree has a right to not have its branches cut off – that the tree should be allowed to thrive for the rest of its natural life free from the evil exploits of Smith who wishes to take sadistic pleasure from violent mutilation by wielding his chainsaw. Stand up for the rights of trees everywhere!
However, because the tree has no capacity for appreciating one outcome or the other – cut branches or branches left on – then any “right” of the tree to not have its branches cut is not serving the tree at all. Devoid of any desires or preferences the tree cannot be said to be “benefiting” from whatever end this right brings about. Of course, the tree may look “better” with its branches on, and its chances of growth and survival may be greater. But the opinion that these are good things does not, in any way, reside in the mind of the tree. The person who really thinks that the tree is better off with its branches left on is, of course, Jones – it is he who thinks that the state of affairs is better if Smith is prevented from firing up his chainsaw. Consequently the “right” that Jones attempts to ascribe to the tree is no such right of the tree at all. It is really a right of himself – a thinking, choosing, acting human being – to prevent other thinking, choosing, acting human beings from interfering with the tree. The end pursued by Jones is for the tree to be left alone because he thinks that is better. If, therefore, the right produces that outcome the right belongs to him.6
This realisation is not unimportant when we consider, for example, the attempts of environmentalists to ascribe rights to the Earth itself, or when they talk of industrialisation or resource exploitation (and, of course, anthropogenic climate change) as being in some way “treasonous” to the planet – with one country even going to so far to enshrine such “rights” into law.7
Whatever it is that humans should do to either preserve, alter, or exploit the rich tapestry of opportunities and resources that the earth provides is purely a question for human beings. Whether, for example, a landscape full of lush greenery, waterfalls and wildlife should, on the one hand, be left for all to marvel at its exquisite beauty or, on the other, be dug up to extract coal or some other resource underneath, all depends upon competing values that are possessed by humans. If the law preserves a patch of land as a “Greenfield” site and prevents homes from being built upon it, the victory is of those humans who want the area to evolve naturally whereas the losers are those who would rather have homes to live in. Creation of the Greenfield site is in no way a victory of “Mother Earth” over “humanity” – it is a victory of some humans over others. The Earth itself possesses no mind that can determine whether either the preservation or the exploitation of the whole or any part of it should be preferred, nor is there any kind of intrinsic value in the Earth and its natural state. Nothing is beautiful or ugly, good or bad, useful or useless, inspiring or insipid, unless there is a human being to make these judgments. Any rights that the Earth is said to have, therefore, are the rights held by some human beings and enforced against others – it is the desires of one set of humans that triumph over the desires of another set. Indeed, we might say that the attempt to elevate the rights of mere mortals to the rights of a whole planet is little more than a fraud used to justify despotism – cloaking the enforcement of what the proponents want with the fulfilment of the wellbeing of some greater, nobler entity.
Nor too – to take another environmentalist tactic – can rights be enjoyed by hypothetical or, as yet, non-existent persons. Whether the Earth should be preserved for future generations on the one hand or exploited for the present on the other is a contest between the valuations of existing human beings and so the vindication of any right either way is a vindication of the rights of existing humans. It may well be true that, once those future generations are born, they will form the opinion that the Earth they want to live in should be one way or the other. But the question of what should be done now is a contest between presently living human beings, and whether the nobler path is preservation for the future or enjoyment in the present is a question for those who can address it now. If this should be doubted, then consider what would happen if nobody living today thought that a given resource should be preserved for the future and that everybody was in agreement that this resource to be exploited now – how would any “rights” of future generations to this resource come about?
In this vein, another element of our praxeological understanding worth emphasising with regards to rights is that because action is always the action of individuals then, so too, are rights always the rights of individuals, not of groups or collectives. As the process of reasoning that leads to desire, choice and, ultimately action takes place within the mind of each individual human being then the vindication of the right to perform a given action is a benefit to the individual. Any supposed right of “society” to enforce the “greater good” or the “common good” is, of course, nothing more than the right of some individuals to enforce what they think is good upon other individuals.8
b) Tangible vs. Intangible
As all actions must take place through the physical environment with the aim at changing that environment from one state to the other, and as all rights are the rights to perform physical actions, it follows that the question of rights and obligations is, in turn, a physical matter. In other words, all rights are rights over the physical means that are used to bring about ends.
For instance, if my end is to warm myself up and the jumper is the means of achieving that end then my right is over the jumper so that I may direct it to the desired end; if my end is to satiate my appetite and the sandwich is the means of doing so then my right is over the sandwich. Other people who may wish to devote these physical means towards their ends must have these ends unfulfilled as they have no rights over these means. The rights that one enjoys in these means are called one’s property – a term which, technically, means the right over physical means but is used colloquially to refer to the physical means itself, such as when we say “this computer is my property”.
Consequently, rights do not concern intangible, metaphysical or ethereal objects and concepts. The advocacy of a right to non-physical entities always takes effect as a de facto right to control what other people may do with their physical property, and is nothing more than a backhanded attempt to do so.
For example, the supposed rights one possesses against slander, libel or merely being “offended” seeks to control what everyone else in the world may wish to say with their physical mouths or print with their physical pens and ink. The “ownership” of a patent – i.e. of an idea – is a right to prevent other people from making and marketing certain creations with their physical raw materials.9
Some rights may give the appearance of a right over an intangible entity whereas closer examination will reveal this not to be the case. A good example would be the right to broadcast on a certain radio frequency. If two broadcasters are unable to use the same frequency because one broadcast will jam the other then surely one must have the right to use the frequency whereas the other must not?
The answer is that yes, a right can be awarded to one of them. The right, however, is not over the intangible frequency – it is over the tangible airspace through which those radio waves are transmitted. If I am transmitting on a given frequency over the British Isles then my right is to transmit on that frequency over the airspace of the British Isles. If I am transmitting over Europe then my right is over the airspace of Europe. That this is true can be illustrated by the fact that two broadcasters can use the same frequency in different parts of the world without running into conflict. A broadcaster whose range is the whole of Australia can transmit on the same frequency as a broadcaster whose range is the British Isles with neither interfering in the actions of the other. They would run into problems only if their ranges overlapped and in this event, one would have to avoid broadcasting in the airspace of the other, or use a different frequency.
The fact that rights exist over tangible matter endows them with objectively viewable boundaries and, thus, a high degree of certainty. Everyone, for example, can see the fence where my house stops and that of my neighbour begins, and so if I was to put a foot over that fence then it is clear to everyone that I would be trespassing. Rights over intangible concepts however – such as the right not to be “offended” and protections against other thoughts, feelings and ideas – are based on boundaries that are wholly subjective and, thus, open to strong disagreement.
Finally, the physical nature of rights, and the fact that they are there to serve the physical devotion of means towards ends, indicates why a breach of a right is a physical interference – in other words, physical aggression.
As purposeful actions to direct means towards an end will be made only if the means are scarce, and as rights are the province of purposeful actions, then it follows that only scarce means will be means over which one has rights. This is because, quite obviously, rights are simply superfluous if the means are not scarce because everybody has sufficient means available to satisfy all of their ends and, consequently, nobody needs to secure a right against a portion of the means to ensure that it is directed to their ends ahead of somebody else’s. Thus, for example, there are no rights over portions of breathable air. The creation of rights is a response to scarcity – they serve to distribute an insufficient quantity of means so that some people can fulfil their ends ahead of others. As we noted earlier, all scarce means are valuable – thus, we seek to secure rights over goods because we feel that we would lose something (the service that the good provides) if it was to be taken by another individual.
d) Action and Value
Understanding the link between action, value and rights puts us in a position to better to understand the justification behind one of the foundational principles of libertarian rights, the Lockean homesteading rule. This is the notion that one gains ownership of a previously un-owned resource as the result of an original act of physical appropriation – or by “mixing one’s labour” with the resource.
As we know, if a person acts in relation to a given object, it means that he regards that object as scarce and, thus, valuable. If, however, a person does not act in relation to a given object then it is, to him, not scarce, or without value. Consequently, if a person acts in relation to an object which no-one else has touched, it means that he is realising value for himself without any loss of value to other people. For if someone else had regarded the resource as valuable then this other person would have acted in relation to it by now.
So if, for example, A builds his house on a patch of land that B has not staked out for himself then A’s gain has caused no deprivation to B. B’s prior lack of action in relation to the land indicates that he, B, has no use for it – he is busy acting in relation to other land or resources that he does regard as valuable. Original appropriation, therefore, generates no conflict.
If, on the other hand, a person tries to act in relation to an object that is already owned by someone else the situation is markedly different. For in this situation, there already is another person – the first owner – who regards the object as valuable. The consequence of the action of the second person in trying to obtain the object for himself is, therefore, a cause of conflict. Two people now want control of the same object for their own ends.
For this reason, we can see the merits of the “prior-later” rule – that the first appropriator of an un-owned good becomes its owner who can exclude all later persons from ownership. The first owner realises value for himself at the expense of no other person, whereas latecomers must always cause deprivation to the first owner if they attempt to appropriate the object.
Moreover, because the claim of a right depends upon a physical action in relation to physical property, it is possible to determine objectively who the genuine rightsholder is and who is not. As it is not physically possible for two people to occupy the same space at the same time then we can say with certainty that one of them must have been there before the other.
Contrast this to the granting of rights from the mere oral declaration of ownership over property. Two people could simultaneously declare their ownership over, say, a field and yet there would be no way to determine which of the two is the legitimate owner.
It is true, of course, that we might dispute who was occupying a piece of property first and that the matter might not always be clear. This, however, is a question of evidence, and once satisfactory evidence for one person being there before the other is found then a determination can be made. However, all the evidence in the world will never to serve to determine the legitimate owner of a piece of property as the result of mere oral declarations. Indeed, if the latter was the accepted method of determining ownership, literally everyone could claim to own the entire Earth.
e) Binary Nature of Rights
Because rights concern the fulfilment of competing ends with scarce, physical means it follows that the question of who should and who should not be granted a right is fundamentally binary. In other words, any decision to award a right must grant one individual 100%, exclusive access to the property that is the subject matter of the right while placing 100% of the duty to avoid interference with that property upon everyone else. It is only in this way that this person’s end can be fulfilled – there can be no halfway houses.
If this was not true and each person could fulfil his ends through sharing the physical means in question then it would follow that these means would not be scarce and that, thus, any invocation of rights would be unnecessary. For instance, two people can each draw water from a lake so long as the quantity of water available exceeds that needed to fulfil each person’s ends. Neither of the two individuals would have any motivation to claim rights over the water against the other. The problem occurs when the desired consumption of water outstrips the available supply. The granting of a right to one of the two individuals to the disputed water must take effect as the ability to completely exclude all other individuals from physical access to the disputed quantity of water.
This understanding does not mean that every right takes effect as 100% ownership and that lesser rights of access to a resource, such as leases and easements, are impossible. The only difference is that leases and easements grant access to the property in question either to undertake a specific activity and/or for a restricted amount of time. For instance, if my neighbour has an easement to walk through my garden to reach the road, then such walking is permitted but he/she may not, on the other hand, start raising lettuces in my garden. If I lease out a flat to a tenant for one year then exclusive possession of that flat by the tenant expires after one year. With all of these types of right it is still the case that, while the specific activity is being carried out and while the period of its permissibility is in force, the rightsholder may completely exclude any physical interference with that activity by another individual (including the property owner).
The same is also true of common or shared ownership. The only difference here is that any decision as to how to direct or use the property must be made jointly or by some mechanism such as majority vote. Once that decision is made, then the entire world is completely excluded from interfering with its implementation.
f) Whole, Discrete Steps; Formal, Qualitative Laws
A final implication of our understanding of praxeology that we shall explore – and possibly the most difficult to grasp – is that, as all values and choices take place in whole, discrete steps then so too does the existence and enforcement of rights.
To return to the example of two people drawing water from the same lake, if they each start to increase their water consumption towards (but short of) the point when the quantity of water will be insufficient to meet the needs of both individuals, they will not each start claiming an eighth, quarter, third or half of a right as the supply of water dwindles proportionately. Rather, there will be one, distinct point when the individuals perceive that they are unable to fulfil their ends with the available supply of water, a point at which a whole, totally exclusive right will be claimed.
This is perhaps illustrated most clearly in the breach of existing rights rather in the claim to new ones. If I was to shake a bed sheet and a piece of dust flies off and lands on your shoulder then it is clear enough to anyone that this is not an aggressive act. However, if I was to throw the bed sheet over your head, tie you up and kidnap you then this clearly would be an aggressive act. And yet both acts are essentially of the same ilk – both involve a piece of physical matter being directed by me to collide with your body and property. Why is one of these acts aggressive while the other is not, and where is the cut off point?
The reason why the piece of dust landing on your shoulder is not aggressive is because the dust causes no perceptible interference by you in the fulfilment of your ends. On the other hand, kidnapping you most certainly would. Aggression occurs at the point at which a physical interference in another person’s body or property hampers that person’s ability to fulfil his ends with that property as viewed by him. Where this point lies is dependent upon human perception, which occurs in whole, concrete steps. It is not dependent upon the detection of some minute, physical incursion traceable only with scientific instruments.
This is not the cause of any problem for a system of ethics. Indeed, we routinely live our lives by employing categories and distinctions successfully in harmony with other individuals without anyone being able to tell us where precise boundaries lie.
For instance, we can all tell the difference between a puddle and a pond without defining the precise quantity of water at which a puddle becomes a pond; we can distinguish a man who is bald from another man adorned with a luxuriant mop without knowing precisely how many decimated follicles a man has to have before he becomes bald; we can tell when the kitchen floor is dirty and when it is clean without the need to resort to measuring instruments to detect the exact amount of dirt present. Opinions may differ of course, and in some circumstances more precise measurements need to be made (the dialects of some hot desert populations, for instance, have dozens of words for gradations of “thirst”). But if, in general, such distinctions and the underlying values they represent are good enough for us to act in our everyday lives then they should be sufficient for ethical rules that assist in doing do.
A more important consequence of this, however, is that libertarian ethics, like praxeology, consists of formal, qualitative laws, rather than substantive, quantitative laws. We can theorise about concepts such as rights, property and aggression in the abstract and draw conclusions such as “a physical invasion of a person’s property is an aggressive act”. But we cannot theorise precisely what the property in question will be, or the precise point at which a physical invasion will breach the right. The contrary only appears to be the case because acts such as killing and theft are so widely and pervasively viewed as substantive examples of aggression that is difficult to imagine a situation in which they would not be. The reason for this, however, is not because of any theoretical deduction but because the very vast majority of people do not wish to be killed or to have their stuff taken by other people. If, on the other hand, we lived in some strange society where it was a great honour to be killed by another person, or where we were all happy to have to our stuff pinched, then neither killing nor theft would be aggressive acts.
The lack of substantive, theoretically determined, pre-ordained precision in ethical boundaries should be understood as an enhancement of, rather than a weakness in, our understanding. For the entire purpose of a realistic and workable body of ethics is to respond to distinctions that are appreciable by real, acting human beings – distinctions and appreciations that are as unknowable as the quantity of ice cream that will be sold today. Such a body of ethics does not have to deal with hypothetical or precise distinctions that are outside of the scope of real problems perceived by individuals. Any attempt to do so simply ends up deciding such boundaries in accordance with the values of the person pondering the supposed problem, and not of those who may actually face the situation.
Possessing the ability to recognise when something is unknowable is a quality that will serve to place the philosopher or scientist in a category of pre-eminence above those who devise all manner of schemes in earnest in order to determine what those unknowable quantities might be. The latter individual is a slave of scientism rather than a practitioner of science, reducing himself to the level of a mere technocrat whose work is irrelevant for any serious understanding of human society.
An important derivative of this understanding is that the generation of law – that is, the concrete rules that resolve conflicts and guide our behaviour through the apportionment of rights to tangible property – must proceed from the bottom up through the actual adjudication or arbitration of real conflicts. For it is only when two people run into a conflict over a given piece of physical matter that we know there is, in fact, any question that the law has to answer. There are laws governing murder and assault because people perceive these acts as the cause of conflicts. On the other hand, there are no laws governing the apportionment of breathable air because nobody conflicts over the supply of breathable air.
The opposite mode of legal development – legislation – is not the product of a real conflict between real people but is, instead, a conflict imagined in the mind of the legislator. Or, rather, it is a really a conflict between the state and the rest of the society, when the state wants resources devoted to one end ahead of another. Thus, the legal systems of societies in which the state commands a considerable control over resources are characterised by legislation and unilateral decrees rather than organic processes such as the common law. Indeed, the volume of legislation at a given time is probably a useful short hand measure of how free a society is likely to be.
A useful analogy in grasping the difference between law discovered through adjudication on the one hand and legislated law on the other is the difference between imperial and metric weights and measures. Old, imperial measures nearly always have their origin in some practical distance or weight encountered in every day life. An inch, for example, derives from the width of a man’s thumb; a foot, unsurprisingly, is about the length of a man’s foot; a mile is approximately 1,000 paces. The metric system, on the other hand, was developed by a French committee in the Académie de Sciences in the late eighteenth century, with a metre originally defined as “one ten millionth of the distance between the North Pole and the Equator through Paris.” Distances based upon such technocratic definitions commanded from on high are almost useless as cognitive aids in everyday life, as anyone (such as the present author) who has difficulty visualising a person’s height when it is quoted in metres and centimetres (as opposed to feet and inches) will testify. So too does legislation fail to address the actual conflicts experienced by real people.
Nothing that we have said in this section should be taken to mean that the substance of the law, and the actual boundaries between aggression and non-aggression, are entirely subjective. You can’t just turn up to court and say that such and such an act perpetrated by the neighbour was aggressive and compensation will fall into your lap. Rather, the law will develop in accordance with what is viewed as typically aggressive behaviour following years, decades and centuries of cases that seek its solace. Thus, there will be presumptions that X behaviour is aggressive and Y behaviour is non-aggressive. Kidnapping and assault, for example, will be presumed to be aggressive acts – often so much so that many of our contemporary legal systems will not permit proof of consent of the victim to acts such as killing and causing serious bodily injury to serve as a defence. On the other hand, a piece of dust that I blow onto your shoulder is likely to be presumed to be non-aggressive simply because most people do not regard it as being so. Even if, therefore, such an act actually did cause an interference with your ability to fulfil your ends through your property as perceived by you, a court is likely to find that you, rather than everyone else, should bear the economic burden of taking steps to protect yourself from this unusual sensitivity.10
Moreover, it is not simply the case that you can turn up to court and declare that your ability to fulfil your ends with your property was disrupted by the physical intervention of another person. After all, people could lie after the fact, especially if they perceive that resolution of a case in their favour would result in compensation. Rather, the court has to make an objective determination as to what your real intentions were by examining your actions. If, for example, you permitted an alleged aggression to carry on for a certain period of time then the law may take that as evidence that you did not, in fact, regard it as an interference with the fulfilment of your ends. One of the reasons for statutes of limitations is that the elapse of a long period of time between the alleged aggressive event and the bringing of a lawsuit suggests that there was, in fact, no conflict. And, in some cases of course, the court needs to determine whether there was, in fact, consent to the disputed physical interaction at the time it occurred, and whether one’s appearance before the court now is simply the result of ex post regret rather than as a genuine victim. One cannot, for example, lend a person a car and then claim it was stolen, nor can you have willing sexual intercourse with another person before claiming that you were raped.
An important upshot of all of this, however, is that because values and the behaviour they motivate tend to differ between different societies and cultures, the actual boundaries of legal and illegal behaviour have to be determined in accordance with the specific customary, conventional and social context.11 Hence, it is the case that law must be generated at the most local level possible – probably within the boundaries of a common culture, language, ethnicity, religion and so on. Indeed, we might say that the process of making law is the transmutation of high level, political principles into actual, concrete rules suitable for the specific location. In other words, general, abstract principles – i.e. proscriptions against killing, stealing, etc. – will run through every legal system; but the precise delineations between behaviour that is proscribed by the law and behaviour that is not will differ. This is one reason why libertarians should be passionate advocates of decentralisation, and provides a further indication as to why any forms of legal gigantism – excessively supranational determinants of jurisprudence (such as the EU) that attempt to unite a multiplicity of nations through one-size-fits-all laws – are bound to fail.
All of this throws a new light on issues such as abortion and the rights of children – in other words, the difference between a being that is capable of being a rights holder and one that is not. For, in just the same way that the boundaries between aggressive and non-aggressive behaviour cannot be clearly delineated, neither also is it possible to determine precisely when a human being should be regarded as either a whole or partial self-owner and, thus, the beneficiary of proscriptions against murder and bodily injury etc.
This is not the place to get bogged down in the ethical quagmire of abortion, but a few observations in light of what we have learnt above are warranted.
In the first place, we need to recognise that the solution to the problem is not strictly theoretical. To reiterate, libertarian theory can tell us which type of beings – those capable of reasoning – possess rights, but we cannot determine theoretically, in advance, precisely which beings will so qualify without actually coming across those beings. At the moment, of course, fully capable, human adults are the only beings that qualify undeniably. Regardless of the passionate beliefs of animal rights activists, because no other species comes anywhere near the level of reasoned action demonstrated by human beings, we have never had to consider this question with a wholehearted degree of seriousness. If, however, we make contact with alien beings who may possess an array of reasoning abilities then it is a question we may one day have to face. When it comes to abortion, however, it is a technical error to think that there must be a “libertarian theory” of abortion instead of, more accurately, an application of abstract, libertarian theory to the real world problem of the rights of foetuses.
Second, in contrast to rights that exist between fully capable adults, it will always be the case that, whichever rights are possessed by unborn babies in whosever legal system, the babies themselves are not in a position to formulate or enforce these rights on their own behalf. Rather, the enforcers and determinants of these rights are existing adults, who are disagreeing with other, existing adults as to whether a foetus should possess rights. The conflict is not, in other words, between the foetus and the carrying mother who seeks an abortion, but between the mother and other people.
As we noted earlier, the boundaries between rights will always be the product of the valuations of existing, reasoning human beings. Rights are not the province of hypothetical or non-existing beings, nor are they the domain of existing beings that possess no ability to reason. Thus, at the extremes, if every fully capable adult in the world believed that abortion was wholly acceptable, then abortions would continue apace and no one would ever question the matter. Conversely, if everyone, including carrying mothers, believed that abortion was evil then there would be no abortions at all and this state of affairs, likewise, would be sustained as uncontroversial. A libertarian system, being based upon the values of real people in the real world could, therefore, produce either outcome.12 Regardless of the substantive merits either in favour or against abortion (and of all of the arguments of varying levels of permissiveness in between that are dependent upon the progression of the pregnancy), libertarianism will always give effect to the rights of (i.e. prevent aggression against) those beings who most definitely are viewed as being rational beings at the risk of an aggression against beings who only may qualify as rational beings (i.e. foetuses).
As we are in the world today, because of the question of whether a foetus should be regarded as a whole person is highly contentious and subject to virulent disagreement between the real, choosing, deciding, valuing and acting adult human beings, it is not possible to define abortion universally as either an aggressive or non-aggressive act and to enforce a subsequent law without committing a very real aggressive act (as defined by the valuations of those people) against one set of adult human beings on the other side of the divide.13
For in a society which largely does not regard foetuses as equivalent to whole persons (and thus regards abortion as permissible), the legal prevention of a mother from seeking an abortion would be viewed as an aggressive act against the person and property of the mother. On the other hand, for a society which largely does view unborn babies as whole persons and regards abortion as an abomination, but the law of which had little or no proscription against the practice, the law would be sanctioning wanton murder. Moreover, the resulting legal restraint of those who would defend unborn babies from abortion – i.e. those who would physically prevent the handful of mothers who wish to do so from seeking abortions (defensive action which would be perfectly legal if abortion was aggressive) – would be a very real aggression, in their view, against them.14
The upshot of all of this is that the most peaceful solution to the abortion issue possible will, like all others, result only from it being decided at the most local level possible in accordance with the prevailing customary, cultural and conventional context. Thus, there will be some areas that permit abortion and other areas in which it will be outlawed as murder, with further areas showing variations of permissiveness at points between conception and birth.
The result of the alternative – a universally imposed law – is that half of the population will feel that the law is sanctioning, rather than preventing aggression. In such an environment where the law loses its integrity, there is then a very real incitement towards vigilante violence and self-administered justice against those whom the law officially protects but are viewed as carrying out an abominable act.15 In other words, the law sheds itself of its very purpose – to prevent or otherwise avoid conflicts being settled by violence.
None of this means to say that everyone should just divide themselves into whichever community they prefer and then stop arguing about the issue, nor should they cease their attempts to persuade people of what they regard as the truth. Ideas should not be silenced and people should not stop arguing for what they believe is right and moral. No person, people or community is forced to set in stone its values for ever and a day by refusing to adapt them to new degrees of knowledge and understanding. However, legal systems have to function in an environment where real people’s values are taken as a given, and they have to configure themselves so as to cause the least possible amount of conflict and violence. In the United States, for example, where abortion is particularly controversial, the matter would probably cause far less polarising vitriol if it fell under the jurisdiction of the states rather than of “winner takes all” Federal laws.
Moreover, we are not at all suggesting, in the entirety of this section, that the content of the law is essentially the subject of mob rule or the vagaries of popular opinion – that “might makes right.” Red heads are not suddenly going be legitimately robbed in favour of the brown haired following a text message vote in the Sunday Mirror. Murder, rape, assault, and theft will always be aggressive acts, and nothing can change that fact. What we saying is that the precise boundaries between aggressive and non-aggressive acts can be decided neither universally nor theoretically. Abortion is probably the most controversial area, but it also includes more mundane issues such as how loud noise can be; how bright lights can be; how much pollution can be emitted; and so on. Moreover, such boundaries have to be credible – no one is ever likely to be able to argue convincingly that stabbing a person twenty times with a knife is not aggressive, nor, conversely, could one propose to criminalise an old man sitting in his chair at home reading the newspaper.
Further, there is also a world of difference between a legal system which permits a select few people working for the state to draw the boundaries and distinctions between aggressive and non-aggressive behaviour, and a system that draws them from real cases involving conflicts between real people. The first is far more likely to manipulate these boundaries in accordance with immediate, populist pressure, or to use the force of law for the legislator’s own malevolent ends. In fact, the actual result of a localised, “bottom up” system – when the law can only evolve as the result of new, real cases – is likely to be a remarkable degree of stability and certainty in the law compared to that generated by our modern day, legislative legal systems.
There are many more implications of this praxeological understanding of rights and aggression that space precludes us from elaborating, but we will mention two that may be pertinent.
First, as just mentioned, incidences of pollution are acceptable to the extent that they are imperceptible to human beings. Thus, a libertarian society is not going to turn every car owner into a tortfeasor who has to answer for all of the minute quantities of car fumes that he spreads onto every property that he passes on his route. Such an objection to a libertarian conception of rights is clearly ridiculous.
Second, as ethics concerns only the actions between actual human beings, any physical invasion that is perceptible only as a consequence of the actions of the entirety of humanity and cannot be pinpointed to the exclusive action of identifiable individuals does not fall within the ambit of ethics and should, instead, be dealt with as a phenomenon of nature like the wind and rain. Thus, although many libertarians dismiss the truth of anthropogenic climate change as simply a leftist ruse to control the economy, even if it was happening then, as a consequence of the actions of the entire human race, it would be not be actionable in law.
Having examined in detail the implications of Misesian praxeology and the action axiom for our understanding of libertarian theory, we will proceed, in the third and final part of this series of essays, to elaborate upon Mises’ understanding of the fundamental importance of economics and economic theory in human society. We will then conclude with an annotated biography of Mises’ major works.
Go to Part Three.
1This should not, however, be taken to mean that Austro-libertarianism, in the mid to late twentieth century, suffered from what Chris R Tame called “the publish-or-perish specialisation and intellectual fragmentation” that plagues the social sciences more generally. In fact, as Tame points out, it was Rothbard’s rejection of hyper-specialisation and the realisation that “fundamental principles of human nature and scientific methodology make a coherent understanding of all [emphasis added] the social sciences accessible” which ensured that “true knowledge, as an integrated hierarchical whole […] was placed at the centre of the intellectual agenda”. The present essay aims to contribute to furthering the fulfilment of this endeavour. See Chris R Tame, Creating a Science of Liberty: The Life & Heritage of Murray N Rothbard, 1926-1995, Ch. 1 in Idem, The Science of Liberty: Selected Essays on Politics, Culture and Economics, The Hampden Press (2016), p. 31.
2Presented here is only a summary of action and its implications. For full expositions, see Ludwig von Mises, Human Action: A Treatise on Economics, The Scholars’ Edition, Ludwig von Mises Institute (2008), Part One; Murray N Rothbard, Man, Economy, and State: A Treatise on Economic Principles, with Power and Market: Government and the Economy, Scholars’ Edition, Ludwig von Mises Institute (2009), Chapter One; Idem, Economic Controversies, Ludwig von Mises Institute (2011), Part One.
3A full of appreciation of the phenomenon of value does, of course, require an understanding of the law of marginal utility. See Rothbard, Man, Economy and State, pp. 21-33.
4This pervasive condition of scarcity should not be taken to mean that we are forever on the brink of exhausting the world’s resources. In fact, only a bare fraction of the available physical matter has been exploited for human use, mostly skimmed from the surface of the Earth’s crust. We simply have not yet found economical ways to exploit the remainder so that it is available to satisfy ends now. For instance, there are millions of tons of gold existing in trace amounts in the world’s oceans. The problem is that the attempt to harness these traces now would cost far more than the value of the gold extracted (in other words, there are other ends besides gold extraction to which the available means must be devoted). However, once economical means come into our possession we may begin to exploit this gold, and the newly extracted metal will be used to fulfil additional ends that have thus far been unfulfilled. The same is true of all other resources such as oil, natural gas, copper, and so on. It is the failure to realise that scarcity is an economic concept as opposed to a material, environmental or biological one that has led to the failure of predictions such as “peak oil” or of Paul Ehrlich’s half of his famous wager with Julian L Simon.
5An illustration of all of this can be seen in the wake of the 2008 financial crisis when central banks created huge increases in the size of their balance sheets by printing more money. All else being equal, this should have led to significant price inflation. However, most of this additional money was simply parked in bank reserves rather than being lent out to the wider economy. In other words, the increase in the supply of money was counteracted by an increase in the demand to hold money, thus nullifying any inflationary effect. “Austrian” economists who had predicted massive price inflation were consequently derided by their mainstream colleagues, such as Paul Krugman, for the failure of the inflationary prediction to come true. Such a failure, however, concerns only the specific circumstances prevailing at the time. It does nothing to invalidate the formal law that an increase in the quantity of money must, all else being equal, lead to a rise in prices.
6This does not mean to say that a legal system could not function by granting rights to trees or to other inanimate objects – merely that these rights would be the product of the valuations of actually reasoning beings. For instance, in a society in which everyone believes trees to be the equivalent of whole persons (perhaps as the result of some kind of religious idolatry) then the law actually would protect trees from physical harm. This would not necessarily be an “un-libertarian” outcome if the vast majority of people are satisfied with the situation, even though it is wrongheaded. For whether the content of the law is contrary to libertarianism turns upon whether that content is either giving effect to or overriding the valuations of real individuals. In the instance where everyone believes trees to be sacred then it is giving effect to those valuations. It is only when there is a growing emergence of the correct realisation that trees are, in fact, dead and unconscious that such rights become a farce, and the attempt to sustain them translates into the oppression of one set of persons by another. This will become clearer below when we discuss the contentious issue of abortion.
8Space precludes us from discussing at length whether, for example, incorporated associations may possess rights independently of their owners and officers – a contentious issue amongst libertarians. Suffice it to say here that, if they can, such legal personhood serves to facilitate legal convenience in business dealings and acts as a vehicle for the owners to limit their liability for the association’s debts to the initial capital that they invested.
9This is not the place to debate at length the “libertarian view” on matters such as slander, libel or intellectual property. We are simply pointing out the implications that our knowledge of praxeology has for the way in which such rights are manifest in the real world.
10An actual example of this can be seen in the changing nature of fencing laws. In societies where it was typical to rear cattle intensively it was usually the duty of the cattle to owner to fence his cattle in, and he could be sued by neighbouring property owners if he failed to do so. On the other hand, where cattle were reared extensively over many hundreds of acres, it became the duty of property owners to fence other people’s cattle out.
11This is true also in the type of behaviour that is necessary to generate contracts, i.e. to transfer property and rights from one person to another. What behaviour, for example, is sufficient to conclude a contract to buy a chocolate bar in a shop? Does anything need to be said? Is simply showing the money acceptable? Or do the parties need to read and sign a written contract the length of telephone directory? Why is it that if I sit down in a restaurant and order from the menu that I am then bound to pay for the meal when I have not stated explicitly that I will do so? Why can I not lawfully assume that the chef is making a gift to me?
12Indeed, part of the difficulty of trying to determine a “libertarian” theory of abortion is that, because libertarianism is formal and qualitative and, thus, devoid of substantive, positive values, credible “libertarian” cases can be made either in favour or against abortion once substantive values and assumptions are brought into the picture. Other stances on the issue, which are imbued with substantive values in the first place (such as Roman Catholicism), do not have this problem.
13See footnote 6.
14Whether or not a foetus can be said to be committing an aggressive act against the mother by growing inside her body is likely to be a superfluous question in the abortion issue. In a society which regards foetuses as whole persons, the majority of mothers are not likely to view the growth of the baby naturally in the womb as an aggressive act, and thus the law will not penalise it as such. In a society which does not regard foetuses as whole persons the question of aggression is irrelevant as only whole persons can commit aggression.
15Such violence is already perpetrated by those on either side of the debate: https://en.wikipedia.org/wiki/Anti-abortion_violence; https://www.hli.org/resources/pro-abortion-violence-fixing-the-record/.