Libertarian Law and Legal Systems Part Three – Consent and Contract
By Duncan Whitmore
We will begin our survey of the causative events of legal liability in a libertarian legal system with those that arise from consent because, even though people may view “the law” as being synonymous with wrongs such as crimes and torts, consensual legal relations are, in fact, the most frequent types of legal interaction that arise in an individual’s life.
The predominant form of legal relations arising from consent is, of course, the contract; a person may enter tens of these contracts every single day by, for example, just purchasing a coffee, a bus ticket, or lunch, whereas most people would scarcely commit a single crime in their entire lives (although we might note that today states are happy to spill oceans of ink in criminalising, through legislation, even the most innocuous of actions). While any good legal system must have strong proscriptions against horrific acts such as murder and rape, it is the contract that is the primary preoccupation of everyone’s daily lives.
The first question to consider, then, is what exactly is a contract? Although it should be clear that all contracts concern some sort of bilateral arrangement, different legal systems have varying and often elaborate definitions. Continue reading
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. Continue reading
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. Continue reading
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. Continue reading