Liberty and Truth – Why Statists should Bear the Burden of Proof


Liberty and Truth – Why Statists should Bear the Burden of Proof

By Duncan Whitmore

During the admittedly few years in which I have been writing on Austro-libertarian topics, one matter on which I have not put pen to paper is the justification for liberty as a fundamental political principle. I have spent much time pointing out the effects and implications of liberty (and of alternative orders) on a wide range of issues from free trade to sound money, from law to culture, and from immigration to the NHS; for many readers, these will, I hope, be persuasive. But what is the one, big reason that elevates liberty head and shoulders above all forms of statism and socialism as the just cause towards which we should strive? Which argument would blow out of the water any attempt to establish tyranny and despotism? Why have I never attempted anything of this magnitude?

One reason for this apparent omission is that I am yet to think of something that I could say on the topic that has not been said elsewhere, and better. Rather than wasting the reader’s time by repeating what has been written before, I prefer to confine my own writing to matters on which I feel as though I am making at least some kind of new contribution, however small.

To be frank, though, the overriding reason derives from an intuitive sense of repulsion triggered by interfering do-gooders and busybodies: that is, if I am getting on with my life peacefully and quietly, my instinctive reaction to the appearance of some prying meddler is that he should mind his own business. Moreover, I do not see this as a one sided obligation: I am quite willing to return the favour by minding my own business when it comes to the affairs of other people. In fact, I couldn’t care less about what other people are doing with their own lives so long as it isn’t bothering me. Such an instinctive “live and let live” attitude is, no doubt, the initial impetus that drives most libertarians towards the philosophy of liberty.

Of course, another individual may have a genuine complaint or legitimate authority to question my actions. If, for instance, I have wandered mistakenly onto his property then he is within his rights to tell me that he is the owner and that he would like me to leave – a request with which I should comply. Even so, however, the onus is on him to explain this complaint or to establish his authority. If he fails to do so, then I am entitled to tell him to b*gger off. Absent any legitimate authority or complaint on his part, I do not bear the burden of having to explain a single iota of what I am doing to this stranger.

Hence, whenever one is asked to “justify” liberty it always seems to me as though the wrong question is being asked. For essentially what we are being tasked with is explaining why people should get to keep control over their own bodies (self-ownership), and why they should get to keep the belongings already in their possession (private property). In short, we are expected to explain why people should just be left alone. Surely, instead, the onus should be on all of the statists, socialists and egalitarians to explain why they should be able to take control of other people’s bodies from them (subjecting them to partial slavery), and/or why they should get to take some of everyone else’s belongings in order to fulfil some kind of redistributionist scheme? In other words, why should they get to interfere with other people? Surely any of these, and similar types, of imposition are the proposals in need of justification? The statists may, of course, establish a prima facie argument in their favour, in which case we should certainly meet them with a rebuttal. But if they fail at any point then freedom should win by default without further ado. It should not be the case that any failure on the part of libertarians to prove that liberty is conclusively “better” than some enforced alternative must result in a default to the latter.

This attitude is not without a rational basis. For instead of being some new and wonderful idea, freedom in terms of self-ownership and private property are, indeed, the default status of human beings – or, at least, its de facto existence must be chronologically prior to the systematised imposition of any kind of physical enforcement such as the state. Each of us is born with control over own bodies and our own limbs. My brain is connected to my arms and legs while your brain is connected to your arms and legs, and so effective self-ownership over our respective bodies exists before either us even ponders the matter. If, on the other hand, I am to deny you your self-ownership, I have to disrupt this existing state of affairs and take from you that which you already have. The same is true with private property. Every redistributionist scheme consists of taking property from an existing possessor, and so it has to presuppose a state of de facto private property ownership. Indeed, the rationale for these proposals, more often than not, is that some people already have too much while others have too little. More comprehensively, socialism only becomes viable after people have laboured for themselves and their own ends, gradually accumulating privately owned capital goods that establish a prosperous economy. Socialists have rarely expressed much interest in building this level of prosperity from scratch – instead they focus on interfering with what has already been accomplished.

Consequently, all anti-freedom propositions must take effect as impositions into an existing state of freedom. As such, the burden of proof should be on him who proposes this imposition to justify his case. Should he the fail then people are entitled to carry on as before.

Statists have been remarkably successful in demolishing this view and offloading the burden of proof onto advocates for freedom – something which we touched on in our ongoing series on Fighting for Liberty, where we said in Part Two:

Committed egalitarians see equality not just as a mere goal that would be nice to have as part of a political manifesto; instead, they see it as the default status of humanity, i.e. the starting point from which any kind of inequality is to be considered an aberration of nature that must be either corrected or specifically justified. [John] Rawls […] contributed much to this way of thinking through the suggestion that his lifeless wraiths behind the veil of ignorance would “acknowledge as the first step a principle of justice requiring an equal distribution. Indeed, this principle is so obvious given the symmetry of the parties that it would occur to everyone immediately.”1 The message is clear: equality is in no need of justification, and so if you are in favour of any inequality, you must be the absurd one in denial of the blindingly obvious. The repetition of this stance has had the unfortunate effect of placing anyone in favour of the kinds of inequality seen in the free market on the back foot. Instead of the egalitarians being tasked to justify why other people should get to take the wealth that we each produce, the burden of proof has somehow fallen upon us to explain why we should get to keep it (or why unequal outcomes generally are justified). Should these proofs fail then, conveniently enough, wealth is seemingly free to be distributed to the rest of “society” without further ado.

In a short post concerning so-called “luck egalitarianism”, Austro-libertarian philosopher David Gordon illustrates how two prominent, pro-freedom thinkers – David Schmidtz and Robert Nozick – have fallen for this ploy by attempting to justify why people who are merely “lucky” should get to keep their spoils from the marketplace. So if, for the sake of argument, a wealthy individual owes his fortune to a unique talent – an accident of birth – rather than to any particular effort on his part, then Schmidtz and Nozick explain why there are good reasons for that individual being able to keep his wealth in spite of his luck. Schmidtz, according to Gordon, argues that if you work to develop your talents (or to exploit opportunities) you deserve to benefit from them; Nozick, looking at it from a different angle, adds that “you are entitled to your superior wealth and income, so long as you obtain these through a just system of property acquisition and transfer.”

What we can see, however, is that regardless of how true each of these arguments may be, they merely accept the notion that an equal distribution of resources resulting from luck is prima facie unjust, and that if such a situation is to persist it must, in the words of Marxist philosopher G A Cohen, be specifically “vindicated by some choice or fault or desert”.2 As Gordon is keen to point out, neither Schmidtz nor Nozick questions this premise; neither turns the tables on the egalitarian by saying “so what if a person lucky?” Why should the lucky have to explain why their possessions are justified? Surely it is the luck egalitarians who need to explain why other people should get to take that wealth from those who are lucky? Simply presuming injustice is not enough. Indeed, luck egalitarianism seems to be little more than a tautology, for all it does is redefine an unequal distribution of resources as an unequal distribution of luck. As Elizabeth Anscombe, quoted by Gordon, says: “[W]here there is an objection to an inequality of advantage, we want to know what the objection is — it has not been given already in calling the inequality inequality.”3

In challenging statist arguments, therefore, libertarians need to rethink their debating strategy in two ways. First, we need to be emphatic in shifting the burden of proof back onto the shoulders of the statists, i.e. statists should have to demonstrate why they are justified in taking what we already have. Second (and as a result of this) justifications for liberty should be thought of not as proving our own rights to self-ownership and private property but as denying the rights of others over your person and property, with your rights prevailing by default. In other words, our arguments should be primarily defensive rather than offensive. Each of these endeavours can be accomplished regardless of whether one approaches liberty from a natural law or a utilitarian/economic angle, or from argumentation ethics.

Regarding the first task, both a natural law libertarian and an argumentation ethicist could take the following line in a dialogue with a statist: “I have de facto sole control over my body and my limbs. I have had this de facto sole control and possession since before you arrived, and so my effective self-ownership is the default situation. You, the statist, are welcome to make an argument that suggests that you should take this control and possession from me. But I will still have this de facto sole control and possession if you cannot make this argument. In other words, if your argument fails, liberty will prevail as the default whether you like it or not.”

A similar argument could be made about the right to the ownership not of one’s body but of physical goods. For when an individual homesteads an ownerless good, he is able to take it into his de facto control and possession at that time because nobody else viewed it as valuable enough to apply his action to. In short, there was no conflict; if there had been, other people would have attempted to stop the act of homesteading at that time. So the original owner is perfectly entitled to tell the latecomer: “I had this object before anyone else. I have been using it for my ends. This interfered with nobody else’s life. Your claim over the object, on the other hand, will interfere with my life and my ends to which I wish to devote this good.4 You are welcome to advance an argument that explains why this interference is justified and why the good should be diverted to your ends rather than to mine. But if your argument fails there is no barrier to me maintaining control and possession over the good in question.” Once again, therefore, liberty will prevail by default if the latecomer cannot establish his argument.

A utilitarian may be in a slightly weaker position than the natural lawyer, but he does still have a powerful argument in his arsenal: the law of demonstrated preference. He can point to the array of property titles that has arisen through voluntary exchange before explaining that, as each party to a transaction expected to benefit through the exchange (and as costs and benefits are internalised), each individual has striven to maximise his utility to the highest extent possible. In other words, each scarce resource has already been directed to its most highly valued end, and so any disturbance of this arrangement will necessarily direct resources to lower valued ends. Thus, the statist needs to find something better than this – he must explain how his active interference with these voluntary exchanges, going against demonstrated preference and increasing the externalisation of costs, would increase the utility of the parties concerned.

Additionally, while economic truths are not proven by historical experience, they are at least illustrated by it. Thus, the worldwide failure of socialism during the twentieth century should be enough to put all forms of statism on the back foot. Granted, mainstream thought these days is directed not at full, economic socialism but at the “mixed economy” – a situation which has resulted in what we might call “state corporatism”, “crony capitalism”, or “corporate socialism” etc. But we can still demand from proponents of the socialised elements of this regime – e.g. paper money, generous welfare states, state regulation – an explanation of why such elements should work merely because the general level of socialisation in the economy as a whole is reduced. In fact, these very elements are now starting to collapse in western economies, proving the inherent instability of the “mixed economy” as we lurch towards greater state regimentation and control – a likelihood anticipated decades ago by the ever-prophetic Ludwig von Mises.5 Thus, it may be easier for utilitarian libertarians to make this point in the coming years.

When it comes to the second task – thinking of our arguments as defensive rather than offensive, with liberty prevailing by default if a statist argument fails – libertarian philosophers have often reasoned in this very way. Here, for instance, is Murray N Rothbard discussing self-ownership:

[T]here are two alternatives: either we may lay down a rule that each man should be permitted (i.e. have the right to) the full ownership of his own body, or we may rule that he may not have such complete ownership. If he does, then we have the libertarian natural law for a free society […] But if he does not, if each man is not entitled to full and 100 percent self-ownership, then what does this imply? It implies either one of two conditions: (1) the “communist” one of Universal and Equal Other-ownership [i.e. each person owns an equal share of everybody else’s body], or (2) Partial Ownership of One Group by Another – a system of rule by one class over another. These are the only logical alternatives to a state of 100 percent self-ownership for all.6

In the ensuing discussion, Rothbard proceeds to justify full self-ownership not directly but by eliminating the alternatives (1) and (2) as impossible, leaving self-ownership by default. Thus, if the statist wishes to destroy liberty, then he should be tasked with explaining why Rothbard in wrong in dismissing alternatives (1) and (2). A similar argument could be made with regards to the ownership of property.

The utilitarian in particular should be able to blossom with defensive arguments, for it is possible to rebut pretty much any socialist programme with a correct understanding of economics. Indeed, one of the reasons why economics is referred to as the “dismal science” is precisely because it forces all manner of utopian dreams back down to earth.7 Whatever the rulers and politicians dream up, economists are always the God-awful gadflies who spring up to tell them why it wouldn’t work – or, at the very least, that there will be unintended and undesirable consequences. More widely, Mises’ identification of the economic calculation problem in 1920 was a defensive rebuttal of socialism that forced socialists to reconsider their own philosophy. If socialists could not solve the problem then free enterprise would be left by default.

Finally, the argumentation ethicist can also reason in this more defensive manner. For one way of looking at argumentation ethics is that the prerequisites of argumentation establish self-ownership directly – that is, one cannot open one’s mouth to propose an argument without presupposing one’s self-ownership. But another way of considering these prerequisites is how they establish the self-ownership of the other people with whom one is arguing. In other words, the libertarian looks not to whether the statist is claiming self-ownership for himself during argumentation, but whether the prerequisites of argumentation require him to recognise his debating partner as an equally free individual in the debate.8 If so, then the statist is prevented – estopped, in legal parlance – from advancing an argument which contradicts this recognition.

None of this, of course, guarantees that any argument will succeed in vindicating the rights to self-ownership and private property. The point is to give the statist the uphill struggle: that, instead of acquiescing in any demand to explain why an individual must justify his existing self-ownership and property titles, the libertarian forces the statist to explain why he, the statist, can establish titles over that individual’s body and property that are superior to those that are already enjoyed by that individual. If that superiority cannot be established then the existing titles remain by default.

Property Rights, Truth and Knowledge

Some readers may be keen to point out that, regardless of how we got here, statism is now the status quo; in other words, the legitimacy of state interference with property titles is taken as a given, so long as that power is validated by the ballot box. Such a disadvantage will, therefore, force the burden of proof upon libertarians anyway, as it does for anyone proposing change from an existing state of affairs. While I agree, it is also the case that a debating strategy directing a statist (or state-sympathising lay individual) to question the assumptions of his own argument may prove to be more successful than launching head first into a capitalist manifesto.

But in any case, the matter actually goes far deeper than the mere ability to win debates. As we shall see in this section, the integrity of truth and knowledge itself – not only the ideas we have but how we think about ideas – is intimately bound up with the status of property rights. The slow corruption of standards of knowledge has been an intimate part of the statist erosion of liberty and how we think about the relationship of the state and the individual. Thus, reclaiming standards of knowledge – of which apportioning the burden of proof is a part – should be seen as an integral part of the fight for freedom.

Contrary to popular belief, there is no golden standard of truth that is suitable for every occasion. Rather, the discovery, gathering, validation and dissemination of knowledge are themselves costly exercises that consume time and resources. Usually, the higher our standard of validation the more resources we will have to consume in obtaining that validation, leaving fewer goods at our disposal to devote to other ends. Thus, the value of establishing the truth must, at any one time, take its place in our rank of values just like any other.

This ranking, in turn, is dependent upon an assessment of the costs and benefits that could result from acting upon information, and whether those costs and benefits are worth the risk of the information being wrong. If we act upon information which we assume to be true but later turns out to be false we will likely incur a loss (for instance, betting £1,000 on a duff horse we think is the next Red Rum). On the other hand, if we abstain from acting upon information which we assume to be false but later turns out to be true then we may miss out on a benefit (for instance, refusing to bet £1,000 on the next Red Rum because we think he is a duff horse).

Although much more could be said about this, the basic principle is that a person accepts a proposition as being true when the expected utility of doing so is greater than the expected utility of assuming it is false.9 This is demonstrated through our actions.

For instance, let’s say that I am planning to go into town for the day. I have the choice of either taking the bus or calling a taxi, but I do not know which is quicker. A family member tells me that “the bus is quicker than a taxi” and that, consequently, I should take the bus.

If I proceed to take the bus without further ado then my action demonstrates that the expected utility to be gained from accepting the proposition as true is higher than the utility gained from assuming it is false. After all, I might trust the judgment of my family, while my own experience of waiting for taxis and buses in the neighbourhood may make the proposition more likely than not. Moreover, the trip is only for leisure, so the expected cost of mistakenly believing the proposition to be true – a slightly longer journey – may be negligible compared to the effort spent researching further the different travel times of various modes of transport.

Conversely, if I refuse to take the bus upon the say so of my family member then my action demonstrates the opposite – the expected utility gained from accepting the proposition as false is higher than the utility gained from assuming it is true. Perhaps my family has a track record of poor judgment or of telling lies, or may be my own experience with public transport suggests that they are wrong. Moreover, the trip may be a vital one requiring me to get into town at a specified time, in which case the expected cost of mistakenly believing the proposition to be true would be too high for me. Thus, I would, in that instance, spend further time researching the different travel times of buses and taxis.

Clearly, we can see that a decision will depend upon the magnitude of the costs and benefits involved and the familiarity of the situation. The judgment of a friend or relative may be more trusted than that of a complete stranger. If the weather forecast tells me “it will rain today”, assuming this to be true and packing an umbrella is likely to impose upon me only a negligible burden, and so it doesn’t matter if it remains sunny all day. On the other hand, if I am told I should invest £10,000 in a business I have never heard of, then I would probably want to spend more time and resources in determining whether the company is sound before I proceed. Further, the prospect of a very high benefit in return for a low cost may justify the risk of assuming a proposition to be true whereas the prospect of a more meagre benefit in return for a higher cost would not.

Thus, knowledge and epistemology are praxeological matters: our gathering, validation and dissemination of the truth are utterly dependent upon our role as actors seeking to fulfil ends with available means. Indeed, the very purpose of knowledge is to enhance our ability to cope with a world of scarcity. In an alternative world of super abundance, knowledge would not even exist in the form that we know it. For if every end was satiated instantly then either we would have no need to know anything at all, or anything that is knowable could be known in an instant with no effort.

No human being can exist as a permanent sceptic, forever suspicious of any information he receives. Every human has to act, and in doing so he demonstrates that he accepts the truth of a causal relationship between means and ends. If, for instance, I eat a sandwich, I accept that it will cause the satiation of my hunger. A pure sceptic, accepting the truth of nothing, would never act at all, the obvious result of which would be his starvation and death. Neither also, however, can an individual be a permanent optimist who accepts, without question, the truth of anything he is told. Such a person would eat not only a sandwich in order to abate hunger – he would be trying to consume wood, plastic, metal, glass, anything he could get his hands on upon the mere suggestion that such endeavours would work. Clearly such a person would drive himself to ruin, possibly quicker than the permanent sceptic.

Nevertheless, the precise nature of scarcity that we face in the world makes a bias towards scepticism inevitable. In the first place, novel propositions are just that – unfamiliar, untested propositions that are making an inroad into the existing array of knowledge that is familiar, having been tested repeatedly through action. In other words, the cost/benefit matrix of existing knowledge has been established whereas the same for new propositions has not been. The risk of loss from acting upon a novel proposition is therefore likely to be higher.

More pertinently, however, in relation to any given object that exists, only a handful of propositions are likely to be true; yet there will be an almost infinite number of propositions that will be false.

Take, for instance, a simple object such as an apple. What can we say about it that is true? It is a fruit; it is sweet; it is tasty; it will help satiate your hunger; it grows on a tree; it is one of a number of varieties; it is approximately spherical; it contains pips. At some point we will exhaust our list of truthful things that we could say. Yet the number of falsehoods we could tell about an apple is almost limitless: it comes from Mars; it comes from Venus; it has cheese inside; it has toffee inside; it is purple; it is blue; it weighs 65 tons; it weighs 64 tons; it can drive a car; it can perform acrobatics; it can be turned into a television; and so on. Acting upon any number of these false propositions – in the manner of a permanent optimist – would certainly result in continual losses.

It is the resulting sceptical bias that causes us to place the burden of proof upon the person making a novel proposition before it is accepted as true. The opposite – requiring everyone else to disprove a thesis – would quickly lead to disaster. For if a proposition, however absurd, was assumed to be true on the mere say so of some random individual, everyone would begin acting upon the proposition with their available means before it was disproven. This would divert scarce means from being utilised in ways that are known to satisfy desired ends to being utilised in ways that do not. The clear result would be the self-infliction of widespread impoverishment and destitution as resources are wasted on implementing falsehoods.

If, however, knowledge is a praxeological concept, then it follows that every economic system must be an epistemic system also – that standards of truth and knowledge will be dependent upon the allocation of rights to property. In other words, property rights and epistemological rules are joined at the hip. In a regime of self-ownership and private property, the effects of every person’s action must be internalised – he cannot offload the costs of what he does onto the property of others. But as we explained earlier, every action is a test of truth, of a link between cause and effect. Thus, the rule that places the burden of proof upon he who states a novel proposition is a reflection of private property rights: every person may test the truth of his propositions using his own property and according to his own assessment of the benefits and costs of doing so, but he may not offload the burden of this test onto the property of other people.

Another epistemological standard is the ceteris paribus rule – the notion that all relevant variables other than the independent variable under examination should remain constant in order to understand the effects of the latter. In a laboratory situation, this can be done directly. Variables such as light and air pressure can be held constant while observing directly the effects of temperature upon a volume of water, for instance. For the economist attempting to understand the effects of, say, an increase in the quantity of money, he must hold all other relevant variables – the demand for money, the supply of goods, the demand for goods – constant in his mind before determining the outcome by deduction. But obtaining and reasoning with knowledge in this way is clearly related to our role of actors. For in any given situation, every individual can change only a single variable – his action. Between a scenario of action on the one hand and a scenario of non-action on the other, everything left untouched by action will be the same while everything touched by his action will be different. Thus, discovering and structuring knowledge according to the ceteris paribus rule is wholly related to our need to determine what our independent variable, our action, must do if it is to create a desired effect in the world.

Under a regime of private property, the ‘trial and error’ of millions of individuals, families, businesses etc. balancing internalised costs and benefits according to their own assessments, acts as a mechanism for us to discover what is true and what is false. However, the effect of allowing some people (i.e. the state) to take, regulate or otherwise control the property of other individuals is that state actors can offload the costs of their actions onto other people. The economic effects of this we are already well aware. But the more subtle, epistemic effects are equally grave, if not more so. For if the state takes primacy over the individual the only thing that matters in determining truth are the benefits and costs to the state, not to individuals. Thus, epistemological rules dependent upon the balance between benefits and costs become distorted under a regime which destroys property rights, warping the nature of the discovery of truth and knowledge.

Obviously one effect is that, when the cost of falsehoods can be offloaded, they can persist for a very long time, in tandem with the destruction of prosperity that is a necessary consequence of socialism. There will be more falsehoods and fewer truths in the same way that there will be more waste and less productivity. Indeed, we can see clearly how state-induced incentives have wrecked the discovery of truth in both the social (e.g. mainstream economic quackery) and natural sciences (e.g. climate change).

But let us focus on this critical the matter of the burden of proof. The essence of statism is that the state has prima facie right over all property. If so, it follows that the state’s desire to use that property as it sees fit becomes the default option. Thus, the state shifts the burden of proof from itself to its critics: the latter are tasked with having to explain why the state should not do something rather than the state having to explain why it should.

Such a shifting is probably best illustrated in the criminal law. In a relatively free society, the state must bear the burden of proving its case against the defendant. In a despotic regime, the state has the right to assume your guilt and imprison you. Not only, with the latter, is it your responsibility to establish your innocence, but doing so serves only the needs of the state – i.e. the risk to the state of releasing you is now lower as a result of having established your innocence. Your needs, on the hand, barely register in the equation. We can see today how the growth of the state and the concomitant dilution of private property rights have led, in turn, to the erosion of habeas corpus in accordance with the preoccupations of the state: wide ranging legislation to combat terrorism; domestic spying and surveillance; the “believe the victim” mantra of radical feminists; “hate crime incidents” recorded on the mere say so of an accuser; and so on. Similarly, racism is no longer an attitude demonstrated through positive action, but a presumed characteristic of anyone who happens to be white, the onus being on the latter to disabuse themselves of this ingrained state.

Unfortunately, the presumption of state primacy abounds elsewhere too, reflected in the attitude that the default solution to every problem is government intervention. If the budget deficit is too high, then taxes must be too low; if the NHS is overwhelmed then it must need more funding; if the railways are overcrowded and delayed it must be because of privatisation; if banks are causing financial crashes they must need more state regulation.

But the greatest shift towards this way of thinking has come with the onset of COVID-19 and the resort to lockdowns. In the first place, the enjoyment of freedom is now a product of express, government permission rather than a natural right, obliterating the presumption of liberty. But more subtle has been the onset of a presumption of danger: that we must lockdown unless we can prove that it is safe to unlock; people must mask up and socially distance in case they are diseased; people must prove their “cleanliness” through negative tests and vaccine passports; there must be a legitimate excuse to travel abroad, or – according to Scottish First Minister Nicola Sturgeon – there must be a “good reason” for adding travel destinations to her “safe list”. Surely it should be the other way around and the onus should be on the state to prove that the COVID situation is uniquely dangerous? Otherwise, all of this is simply the medical equivalent of imprisoning a person in case he has committed a crime (or might go on to do so).

Conclusion

As we can see, states not only claim that their right over our bodies and our property is legitimate. In addition, the erosion of property rights distorts standards of truth, corrupting the very way in which we think and reason about these ideas. Restoring standards of knowledge and shifting the burden proof back onto the shoulders of the statists is not only important for vindicating liberty in a debate; it would be an important victory for discovering the truth and reinvigorating the integrity of knowledge.

*    *     *     *     *

Notes

1John Rawls, A Theory of Justice – Revised Edition, The Belknap Press of Harvard University Press (1999), 130.

2Rawls’ so-called “difference principle” is slightly different, requiring economic and social inequalities to be arranged so that they are of the greatest benefit to the least advantaged members of society. But we can see it is of the same ilk in requiring such differences to be positively justified.

3For the sake of completion, we can question the premise even further if we take a praxeological perspective. For instance, a professional opera singer is lucky to have been gifted with a uniquely beautiful voice. Yet he will fail to earn a single penny unless he makes the conscious choice to step onto the stage at Covent Garden, having anticipated that people would be willing to pay for this use of his time. Thus, it is choice resulting in action that uses a lucky circumstance as a means for attaining wealth, and so it is action that is the morally relevant cause of that wealth. This can be illustrated also with our attitude towards bad luck and loss: a careless driver is unlucky if a pedestrian happens to cross the road at the same time he comes speeding out of nowhere, and yet we attribute the accident to his negligence, not to the misfortune of the encounter.

4Indeed, it is worth pointing out that conflict – with regards to both the ownership of bodies and of goods – is always established by the actions of a latecomer. Using one’s own body and property never interferes with the ends of anyone else.

5Ludwig von Mises, Interventionism: An Economic Analysis, Foundation for Economic Education (1998).

6Murray N Rothbard, The Ethics of Liberty,New York Universty Press (1998), 45-46 [emphasis in original].

7Specifically, the phrase was coined by Thomas Carlyle in response to economic arguments against slavery.

8Hoppe himself seems to underemphasise this second dimension in the truncated version of his argument published in the September 1988 edition of Liberty which brought it to the attention of the libertarian community; consequently many of his critics responding to this version in a later symposium address only the first dimension. See Hans-Hermann Hoppe, The Ultimate Justification of the Private Property Ethic, Liberty, Volume 2, Number 1 (1988), 20-22; Symposium: Breakthrough or Buncombe?, Liberty, Volume 2, Number 2 (November 1988), 44-54. In summarising Hoppe’s argument prior to their noted critique, Robert P Murphy and Gene Callaghan also emphasise this view. See Robert P Murphy and Gene Callahan, Hans-Hermann Hoppe’s Argumentation Ethics: A Critique, Journal of Libertarian Studies, Volume 20, No. 2 (Spring 2006), 53-64 at 55. Hoppe’s extended treatment, however, brings out the second dimension more clearly. See Hans-Hermann Hoppe, A Theory of Socialism and Capitalism, Ludwig von Mises Institute (2010), Ch. 7.

9And, of course, there will be gradations of “true” and “false” such as “probable” and “improbable”, “likely” and “unlikely”, etc.

One thought on “Liberty and Truth – Why Statists should Bear the Burden of Proof

  1. You are right, Duncan; inversion of the burden of proof is a major part of the statists’ weaponry, which they have been using more and more over recent decades. And yet, it goes utterly against any sane conception of human rights.

    It should always be that, in any dispute, the burden of proof must lie with the party that wishes to constrain the other. If this is burden reversed, then the party being constrained loses a fundamental right, the presumption of innocence until proven guilty. They will often lose other rights too. For example, the right for their case to be heard by an impartial tribunal; and, indeed, the right for their case to be heard at all. The party being constrained is also required to prove a negative; which, in general, is impossible.
    I have seen a good recent example of this in the conduct of the Post Office towards sub-postmasters, first falsely accusing them of fraud, and then sacking them on the spot, so they are no longer in any position to defend themselves. You have mentioned some others, too. In the “climate change” arena, for example, the burden of proof should be on the alarmists to show that there’s a real climate problem, and that it is caused by human emissions of carbon dioxide. Those of us who have studied the area know that there are no such proofs.

    This inversion, I think, is a very important matter for us liberty lovers to dispute; so, thanks for bringing it up. It is, indeed, one of the ethical issues on which we can make a very good case for pushing back at the statists. It’s also something which “ordinary” people, I very much hope, will understand instinctively; to invert the burden of proof, and so abandon the presumption of innocence, is ethically wrong. Whoever is doing it.

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