Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation
By Duncan Whitmore
In part one of this five-part series we outlined some preliminary considerations concerning how a libertarian legal system might unfold and develop. We are now in a position to begin exploring the causative events of legal liability in a legal order governed by libertarian prescription.
Prior to considering any specific area of the law such as tort or contract we must explore the ways in which a libertarian legal system will recognise and enforce self-ownership and also the original appropriation of previously ownerless goods.
Technically speaking, the latter topic at least could be covered as part of the law of consent. This concerns the moral imperative that a person should only be liable for the actions that he has undertaken as a voluntary agent – i.e. through his own choice and volition. Both self-ownership and titles over goods allow their owner to not only enjoy the productive services flowing from his body and external goods, but equally and oppositely they burden him with the responsibility of ensuring that, through his actions, those goods do not physically interfere with the person and property of anybody else. Indeed, although law, as understood by libertarians, responds to actions rather than to ownership per se, there is likely to be at least prima facie liability of the owner of property if that property is found to have physically interfered with the person or property of somebody else. Thus, in the same way that it is unjust to physically interfere with someone else’s property, so too is it unjust to hold someone responsible for property that he has not voluntarily asserted control over through his actions. Read more
Libertarian Law and Legal Systems Part One – What is Libertarian Law?
By Duncan Whitmore
One of the more fascinating but less discussed areas of libertarian theory is how law and legal systems will operate in a libertarian society. To complete such a survey in its entirety would, no doubt, take a lifetime of study and authorship of one or several treatise-length works. We shall, therefore, be placing a very necessary limit to the scope of this survey by concentrating on where, why and how legal liability would arise in a libertarian society – in other words, our primary question will be what are the causative events that trigger legal liability in a libertarian society, and how will legal bodies develop and apply the law in accordance with libertarian principles? We will not be exploring in too much detail the further questions of legal responses to liability such as punishment, retribution, restitution and so on, nor will we be looking into the question of how competing police and civil or criminal court systems might operate (except, as we shall see below, to contrast them to state-based legislative law-making systems). Even though the treatment of the topic of liability alone will still contain many omissions and areas requiring expansion with more detail, we hope to lay the foundations of how libertarian law might operate.
This first part of this five-part series will examine what law is from a libertarian perspective, how different areas of the law can be categorised, and how legal principles will arise in a libertarian society. Part two will investigate how libertarian legal systems will recognise self-ownership and the original appropriation of ownerless goods. Parts three and four will explore the laws of consent and of crimes/torts respectively while part five will deal with some miscellaneous but nevertheless significant considerations. Read more
It is often trumpeted as a virtue that “civilised”, social democratic countries offer their citizens one or more types of “social safety net” in an attempt to eliminate the most dire effects of, say, unemployment, illness or some other kind of incapacity that could inflict a condition of extreme poverty upon the individual members of the citizenry. The idea is that the most basic wants will always be guaranteed by the state should one be unable to provide them for oneself and no one need have any fear of hunger or lack of shelter – situations that are said to be “intolerable” in a modern, twenty-first century society.
The first problem with this theory is that poverty is not some selectively appearing disease that makes a magical appearance every now and then to infect an otherwise healthy and wealthy society. Rather, poverty is the natural state in which human beings first found themselves. When Adam and Eve were expelled from the Garden of Eden they saw that the world was a barren and harsh place that is capable of providing precious little – may be just air to breathe – without the conscious effort of its inhabitants. The only way to alleviate this terrible situation is for humans to work to produce the goods that they need and, eventually, to bring about capital investment in order to expand the amount of consumer goods that can be enjoyed – whether it’s cheap food, housing, education, holidays or whatever – a process that only really got underway in any significant form in the 1800s. Read more
One of the aspects of capitalism and the free market that the typical lay person finds difficult to comprehend is the fact that the complex structure of work, production, distribution, and trade could possibly take place without some kind of centralised, directing authority in order to co-ordinate everybody’s efforts. Wouldn’t there just be chaos and mal-coordination with everyone trying to make their own, independent plans if there is nobody at the tiller to steer the giant ship?
This fallacy stems from the belief – accentuated by holistic concepts such as aggregate, pseudo-statistics like “GDP” or “the national income” – that what we refer to as “the economy” is some kind of enormous machine that has “input”, with a single operator “processing” these “inputs” into “outputs”.
In fact, rather than being one giant, amorphous blob “the economy” is made up of millions and millions of independent, unilateral acts of production and two-way trades, many of which will never have anything to do with each other. I may sell an apple to my neighbour for 10p in London; another person may sell an orange for 20p to his neighbour in Manchester. Neither of the two pairs of people has ever met, nor need any of them have any involvement with the exchange of the other pair; and yet both exchanges would be regarded as part of “the British economy” in mainstream discourse. Read more
By both mainstream economists and the general public the cycle of “boom and bust” is believed to be a tendency inherent in any capitalist economy. The fact that the latest of such cycles, beginning in 2008 (and arguably not having ended), originated in the banking sector and that large banks and bankers ratcheted up huge earnings and bonuses only to cause disaster has implicated banking as representative of the very worst aspects of capitalism – the epitome of uncontrollable greed that ends in catastrophe.
Unfortunately this popular view of the mainstream could not be further from the truth. In fact, with its intimate ties to the state and its special, legal privileges it is hard to imagine a less capitalistic industry than banking. Part of the deception – wilfully inflamed by politicians and their lackeys – is one that engulfs other industries subject to state meddling such as utilities markets. This is the belief that, simply because the participants in the industry in question are private individuals or entities that are not officially part of the state, the enterprise must be classified as part of the free market and saddled with all of the supposed flaws of that system. Very often, however, private companies and brands are simply the public facade of what is essentially a state owned operation or state controlled cartel. Read more
During an economic malaise one of the endless reams of statistics to which pundits glue their eyes is the number of jobs that are either created or destroyed. The state makes “job creation” a central plank of its economic policy to put people back to work, and the impression that more people are being hired and fewer fired buoys their hubristic impression that we must be on the road to recovery.
In the first place, we might as well point out that, for as long as humans strive to create more wealth, there will never be a shortage of demand for productive work. Labour is the ultimate scarce commodity – however much machinery we have and whatever our state of technological progress there is no production process that does not require an input of labour (any such process which did not require labour would essentially be producing free goods). Thus, the phenomenon of involuntary unemployment is made possible only by the artificial costs and restrictions that the state places upon employers – such as minimum wages, health and safety laws, working time restrictions, taxes, compulsory national insurance contributions, etc. – which mean that employers and employees cannot work together on terms that are acceptable to them. This is on top of the distortions and upheavals of state-induced business cycles which create clusters of bankruptcies and redundancies in the first place.
That aside, however, the obsession with jobs is another example of the error of looking at an isolated aspect of economic achievement rather than at the entire picture – much like trying to boost consumption in order to further growth which we explored in myth #2. Read more
Capitalism and Equality
By Duncan Whitmore
In several recent posts and a podcast on this blog1, Rev. Rory McClure has provided some robust and insightful assaults on the leftist quest for equality. For too long it has been widely believed in mainstream circles that equality between human beings, in one form or another, is some kind of virtue to which society ought to aspire and that rank inequality is a measure of severe injustice that needs to be corrected by state action. Even though the worst excesses of inequality – such as the rising value of assets owned by the rich as a result of worldwide money printing – are, in fact, products of a state corporatist system, the perception that some people will be wealthier than others in a free market continues to provide an almost instinctive impetus towards some kind of socialism and re-distributionism. Rev. McClure has performed an important service by not only demolishing the view that inequality is a handicap for lovers of liberty but, above and beyond that, by demonstrating how inequality is, in fact, something to be embraced and cherished.
To add to Rev. McClure’s important arguments this essay will first subject the aspiration towards some kind of perfect or immediate equality – i.e. the forced attempt to render all people absolutely equal now with today’s stock of wealth and resources – to a specifically praxeological critique. However, we will also demonstrate that even if someone desires a more approximate or gradual achievement of equality – such as the so-called “equality of opportunity” – it is, in fact, statism, socialism and any kind of redistributionism that should be abandoned while, instead, those who seek to create such equality should embrace a social order that maximises the production of wealth. That social order is, of course, free market capitalism. Thus it will be shown that, even on their own terms, advocates for greater equality should be free marketers. Read more