Defining Liberty


Defining Liberty

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

Viruses and Property Rights


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.

Says Rozeff:

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

Libertarian Law and Legal Systems Part Two – Self-Ownership and Original Appropriation


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

The Danger of “Presumed Consent”


On August 5th of this year it was reported in the news that Parliament is close to passing an overhaul of the organ donation scheme in England through the so-called “Max’s Law”, under which “adults will be presumed to be organ donors unless they have specifically recorded their decision not to be.1” This is in contrast to the current system where potential donors have to explicitly record their consent on the NHS Organ Donation Register.

One should always be particularly wary of laws that are named after specific individuals or events – almost certainly the story of some child or tragedy has been deployed in order to tug at our heart strings so that we wave through a state intervention while struggling to hold back our tears. In this case, the tragedies are, according to the BBC, the 411 people who, in 2017, died before a donor organ became available to them, and of the plight of approximately 5,000 people currently on the waiting list for such an organ in England.2

We might start by pointing out that the real cause of a shortage of donor organs is, of course, the fact that they are forcibly prevented by the state from trading at a market price. The supply of something that is in high demand can rarely be met by altruism alone and so it is always likely to be the case that either under-pricing a good or removing any benefit, cash or otherwise, from those who could be prepared to supply it will lead to its shortage. That may be an uncomfortable fact for those who cannot bear to imagine people “profiting” from the sale of organs. They might, however, wish to consider whether transmuting a monetary cost into the cost of forcing 5,000 people to wait in limbo for a voluntary donor under the shadow of death is sufficient to justify their moral scruples. Further, they may wish to ponder whether it is worth pushing the trade in organs out of the light of legitimacy and into the shadows of the black market – a highly lucrative underground industry worth between $600m and $1bn in profits per year, and where organs are often sourced from kidnapping and murder specifically for the purpose.3 Continue reading