By Duncan Whitmore
In a previous essay concerning the nature of the libertarian movement, we stated that the purpose of libertarian theory (in contrast to libertarian activism) should be to define and justify liberty – to tell us what liberty is and why it is a good thing. It is to the first of these tasks that this essay will be devoted.
Some readers may regard defining liberty as something of a redundant exercise. After all, we have had many definitions of liberty from libertarian and proto-libertarian thinkers, most of which say more or less the same thing: freedom from harm (J S Mill1); freedom from coercion (Hayek2); freedom from “restraint and violence by others” (Locke3); “Absence of opposition” or “externall [sic] Impediments of motion” (Hobbes4); “unobstructed action according to our will within limits drawn around us by the equal rights of others” (Jefferson5). Although modern libertarian theory has successfully refined these concepts – Mill’s harm principle was, for instance, notoriously vague – descriptors of liberty used by libertarians today (such as “self-ownership”, “private property” and “non-aggression”) still suffer from lacking several important clarifications. This is not to imply that libertarian scholars have failed to properly define these principles in the past; more that libertarians (myself included) have become so used to reciting them without further thought that a review of what they actually mean would not be out of place. Moreover, as we shall see below, very different consequences can flow from what appear to be relatively minor disagreements or misunderstandings.6 If this is the case within the community of libertarian scholars how much worse can it be outside of it?
One initial problem is that such concepts are themselves reducible to further fundamentals. What precisely, for instance, is aggression? Why are some acts aggressive whereas other acts are not? Does it have anything to do with intended hostility or are motivations irrelevant? What, also, does it mean to have “self-ownership”? Precisely what is the “self” and what does my “ownership” over it allow me to do? Continue reading
Note: As COVID-19 and the ongoing culture war are likely to be saturating our thoughts at the moment, this somewhat lengthy essay may provide a refreshing opportunity to delve into some libertarian theory concerning the defence of one’s home or business premises from trespassers. Self-defence generally is relatively neglected in libertarian theory compared to theories of private policing and court systems. Nevertheless, if political division continues to translate into increasing violence and civil unrest, then the greater clarity on this topic that the essay below seeks to achieve may not be entirely irrelevant to our current problems.
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In Defence of Booby Traps
By Duncan Whitmore
Recently, Walter Block began a short thread on the LRC blog concerning the libertarian position on setting booby traps for the purpose of defending private property from trespassers. The discussion by no means exhausted all of the considerations involved in this topic, but a longer treatment may help to clarify some of the principles concerning self-defence in a libertarian legal order.
Every person in a free society is permitted to use defensive force against invasions of their person or property. Booby trapping does not question the principle of self-defence per se; rather, the difficulty is with whether this particular mode of protection may be considered defensive at all or whether the trap constitutes, in and of itself, an aggressive act in the event that it is sprung. 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
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
Immigration – An Austro-Libertarian Analysis
By Duncan Whitmore
Both the referendum on Britain’s membership of the European Union and the election of Donald Trump as the US President have elevated the topic of immigration to the top of the political agenda. Leftist, liberal elites – previously so sure they would arrive easily at their vision of an open, borderless world – have been scalded now that the lid has been lifted from the bubbling cauldron of the needs of ordinary, everyday citizens seeking to preserve their jobs and the culture of their homelands.
It is high time that this vitriolic, divisive and – frankly – often quite tiresome issue is put to rest. That, alas, is unlikely to happen, particularly as the political globalists seem content to plough on with their vision of open borders through the looming UN Global Compact for Migration. Listening to the mainstream arguments (or at least to how the leftist/liberal media chooses to portray them), one would be forgiven for thinking that the immigration question needs to be met by an all or nothing answer – i.e. that it is either an unqualified good or an unqualified bad. We are led to believe that it is a contest between liberals, or self-styled “progressives”, clamouring for fully porous borders on the one hand, versus elderly, conservative, racist bigots who supposedly want to keep everyone out and preserve England’s green and pleasant land for white faces.
The falsehood of this dichotomy is obvious to almost anyone who is not of the liberal-left, and, in fact, a “sensible” view on immigration is quite prevalent – that it is possible to be in favour of permitted, but regulated immigration, allowing some people to cross the border as immigrants to come and live and work in the territory of the state while denying that privilege to others. It is also recognised that immigration is economically beneficial in some situations, but not in others – i.e. when immigrants are highly skilled and productive instead of welfare consumers.
The task of this essay is to sharpen this “sensible” view with Austro-libertarian theory. We will begin by outlining the core libertarian theory concerning immigration before examining a key area for contention among libertarians – whether, in a world populated by states, any particular state should restrict or otherwise control movements across the border by persons who are not considered to be citizens of that particular state and whether this is in accordance with libertarian theory. We will then move on to exploring the economic and cultural implications of immigration policies. Continue reading