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.
By Duncan Whitmore
The recent resurgence of the dollar price of Bitcoin in tandem with a steady decline in that of gold presents us with an opportune moment to assess the quality of cryptocurrencies (CCs) as a potential monetary medium of the future. The question becomes all the more pressing once we remember that the current order of state induced inflationary finance is likely approaching its end, a prime factor in governments seeking to assert greater degrees of control over their populations.
Although this essay will mainly be sceptical of CCs as a monetary medium, we should remember that the primary concern of libertarians is with unshackling monetary control from the state, and, thus, in promoting the freedom of money. This means that the most suitable monetary medium should emerge from voluntary trading in the marketplace, in much the same way as language emerged as a result of individual people trying to communicate. Precisely which commodity/ies will be selected as a result of this process is of secondary importance. There is, therefore, no need for libertarians qua libertarians to be particularly fixated upon, for instance, either gold or the gold standard, as many are wont to do. While gold would be far superior to state fiat money, it is not without disadvantages for the consumer. In particular, the relatively high value of very small quantities of gold makes it less suitable for day-to-day transactions compared to, say, silver or copper. In fact, this circumstance meant that the shift, during the nineteenth century, to the predominance of gold as the monetary medium at the expense of other metals necessitated a much wider use of money substitutes (e.g. bank notes) and the consolidation of the metal itself in bank vaults, well out of the public’s hands. This paved the way to the complete severance of the substitutes from the gold that backed them, leaving us with the 100%, state controlled paper standard from which we suffer today.1 Circumventing this state control is the priority. If this is achieved by CCs rather than by gold or by any other precious metal then no crypto-sceptic libertarian should cut off his nose to spite his face merely because his personally preferred alternative to state fiat money has failed to gain preference. Continue reading
Viruses and Property Rights
By Duncan Whitmore
In recent post on the LRC blog, Michael S Rozeff has attempted to demonstrate that pro-freedom arguments made in terms of self-ownership, private property, or the non-aggression principle are ill-equipped to handle a problem such as a contagious virus. It is not entirely clear whether Rozeff is arguing that “property rights solutions” are inherently unable to address such matters, and/or whether they are merely unpersuasive compared to other arguments that libertarians have at their disposal (such as utilitarian arguments). Either way, however, much of what Rozeff says is severely wanting.
Libertarians who attempt to apply 100% body ownership to every situation run into insoluble problems. They frequently try to solve them by deciding what is aggression and what is not, or equivalently who has rights or not, or equivalently whose 100% body property rights are being violated. Sometimes the suggested solutions involve odd behavior that looks immoral, and the confusing and arguable rejoinder is that body ownership theory is a theory of rights, not morality.
In the first place, it is misleading to characterise the libertarian position as one of “100% body ownership” for it conveys the impression that anyone should be able, quite literally, to do whatever they like with their bodies. The correct position is that you should be able to do what you want with your body provided that it does not physically interfere with the body or property of another person without that person’s consent. Rozeff, both here and later, seems to ignore this basic but important qualification. Continue reading
The Overpopulation Myth
By Duncan Whitmore
In addition to the alleged problem of human induced climate change, the leftist/elitist/environmentalist/anti-human monologue is beginning to make increasingly explicit noises about the equally mythical problem of overpopulation. “Too many people” is often blamed on a number of apparent calamities, right from the shortage of particular (usually “essential”) resources all the way up to the outright poverty of entire continents, not to mention the effect of population growth upon the supposed “climate emergency” itself. Although few states have enacted explicit policies in order to stop their citizenry from procreating, factoids such as the suggestion that a dozen earths would be needed for every single human to enjoy a Western lifestyle attempt to create an unwarranted degree of hysteria. Of course, the fact that the notion of population control jars with the liberal attitude towards open borders (which can lead to the very real problem of local overpopulation), and that those calling for population reduction never seem willing to offer their own necks for the chopping block are both challenges that are seldom raised. Indeed, in response to the proclamation of Harry and Meghan, the Duke and Duchess of Wokeness, that they will have only two children in order to “save the planet”, one is tempted to ask why they are bothering to breed at all if the problem is really that serious. Very few of the rest of us, no doubt, would have a great deal of concern if the liberal-left refused to pass its genes on to future generations.
As we shall see here, overpopulation can never be a serious or long lasting issue when there is a society distinguished by free market capitalism. It does, however, have the potential to be a serious problem when a society is blighted by state interference (although the primary effects are still likely to be local rather than general). Continue reading
Libertarian Law and Legal Systems Part Five – Property Rights, Trusts, Unjust Enrichment and Other Considerations
By Duncan Whitmore
In this final part of our survey of libertarian law and legal systems, we will cover some remaining areas of legal liability and a few miscellaneous considerations before being in the position of sketching a final map of libertarian law.
The Standard and Burden of Proof
In Part One, we mentioned that legal procedures, adopted in order to ensure sound judgments, would be the product of entrepreneurial forces in just the same way as quality in the manufacture of, say, shoes and automobiles is guaranteed by the marketplace. We can, however, speculate upon what some of the standards are likely to be.
In contemporary legal systems the requisite standard of proof differs depending upon the type of action. The imposition of criminal sanction demands that proof of the defendant’s culpability be established beyond a reasonable doubt, whereas civil liability can be imposed by merely the balance of probabilities. The reason for this, presumably, is that criminal sanction is viewed as being a greater incursion of one’s liberty than civil remedies such as furnishing compensation. Not only could one be locked up in prison but one is usually lumbered with a criminal record so that it is impossible to disassociate oneself from the illegal act for at least a period of time. Furthermore, the traditional replacement of the victim by the state in the prosecutorial process of criminal trials is, no doubt, deemed to require stricter due process to protect the individual from persecution by the state.
Much of this is irrelevant from a libertarian point of view. Although we have not discussed in detail the different remedies that flow from criminal liability on the one hand and from civil liability on the other, the enforcement of all laws in a libertarian society risks violating an individual’s liberty if that individual is, in fact, innocent. Taking someone’s money in order to furnish compensation for a tort is as much a physical invasion of that individual’s person and property as locking him away for a crime. Low standards of proof would result in legal remedies themselves becoming de facto breaches of the non-aggression principle. Therefore, in order to legitimise the proposed legal remedy it is likely that only the strictest standards of proof will be accepted by a libertarian legal system – even for tortious as opposed to criminal liability. In other words, the fact of physical invasion, the extent of the aggression and the corresponding intent of the defendant must all be established beyond a reasonable doubt, or some equivalent that the libertarian courts devise. Continue reading
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