Murray N. Rothbard: The Ethics of Liberty. New York: New York University Press, 2002 [1980].
No mere libertarian, the late Murray N. Rothbard stands as the most intelligent defender of anarcho-capitalism—as sharply distinguished from anarcho-communalism, the supposed end-time of several forms of socialism. The anarchism of anarcho-capitalism rests on individual liberty; the anarchism of anarcho-communalism rests on radical equality.
“All of my work has revolved around the central question of human liberty,” Rothbard writes. Here he aims to justify “a totally stateless and therefore purely free (or anarchistic) market economy.” For this, “value-free analysis or economics or utilitarianism” won’t suffice. It is a task for “political philosophy” not political economy. The task begins with the individual, with the figure of Robinson Crusoe, alone on an island, seeking his own good. Unlike an economic analysis, which would analyze Crusoe’s “conditions and actions” in order to find the basics of material survival and comfort, Rothbard considers the celebrated islander to establish the “concepts” of “natural-rights morality.” “The Crusoe model enables one to analyze the actions of man vis-à-vis the external world around him, before the complications of interpersonal relations are considered.” On this foundation, he will seek to understand those complications, which include property and law.
Natural rights inhere in natural law. Rothbard concurs with “the Thomistic tradition” insofar as it teaches that “natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason—not faith, or intuition, or grace, revelation, or anything else.” With Thomas, Rothbard affirms that man has a nature: “if apples and stones and roses each have their specific natures, is man the only entity, the only being, that cannot have one? And if man does have a nature, why cannot it too be open to rational observation and reflection?” Ethics stems from this rationally discernible human nature. “The natural-law ethic states that goodness or badness can be determined by what fulfills or thwarts what is best for man’s nature”—a principle defended by Thomas and before him, Aristotle.
David Hume famously objected to deriving right from nature. Nature is, Hume allowed, but how am I to deduce rationally an ‘ought’ from that ‘is’? If I cannot, then either nature as a whole nor any part of it, including human nature, provides a rational standard for ethics. What we call ‘right’ is only a ruling passion or set of passions. Morality is therefore ‘subjective’ not ‘objective.’ But Hume in fact saw that human well-being and happiness requires society, Rothbard counters. Moreover, social order cannot exist unless human beings know what it is and under what conditions it can effect their safety and happiness. In society, conditions must include security for persons and property, that is, for what is called ‘justice.’ Justice is therefore rationally discernible and necessarily governs the passions, which tell us nothing about what is concerning safety and happiness. Hume himself admits this when he writes that “nature provides a remedy in the judgment and understanding for what is irregular and incommodious in the affections.”
Discoverable by reason, natural law is universal among human beings because they have a nature. Natural law “holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason.” The legal principles of a society derive either from “traditional custom,” nor from the will of the rulers, nor from rational recognition of the natural law. These distinctions may be found in Plato and Aristotle. Lord Acton corrected them, seeing “the deep flaw” in “their conception of natural law political philosophy,” namely, their identification of “politics and morals,” which led them “to place the supreme social moral agent in the State,” that is, as ruling apparatus of any political community. Plato and Aristotle also failed to distinguish morality not only from politics but from religion, which was intertwined with the ancient ‘state.’ “Acton added that the Stoics developed the correct, non-state principles of natural law political philosophy, which were then revived in the modern period by Grotius and his followers.”
“The great failing of natural-law theory—from Plato and Aristotle to the Thomists and down to Leo Strauss and his followers in the present day—is to have been profoundly statist rather than individualist.” Aristotle was right to call man a social animal, of being whose “nature is best fitted for social cooperation.” He was wrong to posit “a virtual identification of ‘society’ and ‘the State,’ and thence to the State as the major locus of virtuous action.” It took John Locke to correct this error by “transform[ing] classical natural law into a theory grounded on methodological individualism,” on “the individual as the unity of action, as the entity who thinks, feels, chooses, and acts.” From this Locke derives the idea of property as inherent first of all in one’s own person, a person who then mixes his labor with external, natural objects in order to establish private property. As James Madison wrote, man has a right in his property and a property in his rights. Although Locke’s pioneering version of correct natural-rights theory “was riddled with contradictions and inconsistencies,” these were removed by later thinkers, especially Herbert Spencer and Lysander Spooner. This firm distinction between individual and society, between “personal ethics” and “political philosophy,” between “a man’s right and the morality or immorality of his exercise of that right, narrows the scope of political philosophy proper to “the proper or improper exercise of physical violence in human relations,” inasmuch as “it is a man’s right to do whatever he wishes with his person.”
Rothbard errs in claiming that Aristotle described man simply as a social animal. On the contrary, he described him as a political animal. That man is a political animal, he argued, may be seen in the fact that human beings originate in families, small or ‘extended,’ and that families exercise three forms of rule within themselves. There is the command-and-obey form of rule seen in the relations between parents and children, exercised for the good of the children; the command-and-obey form of rule seen in the relations of freemen and slaves, exercised for the good of the freemen; and there is the reciprocal rule of husband and wife, which he defines as political rule strictly speaking—rule involving discussion and therefore open to practical reasoning. The fact that Rothbard gets Aristotle wrong is an exegetical point, trivial with respect to ethics, but the important point is that Aristotle is right. The elements of what Rothbard calls “the state” already exist in the family, and the family is indispensable to human survival and flourishing, the ends of Rothbardian ethics as well as the ethics of Aristotle and of Thomas. Human beings are naturally political beings, not merely social and certainly not ‘individualist’ in Rothbard’s sense.
This error, whether deliberate/rhetorical or inadvertent, vitiates Rothbard’s anarcho-capitalism on its foundation. One sees this as he turns to “a Crusoe social philosophy.” On the island, Crusoe enjoys “the primordial fact of his own consciousness and his own body,” along with “the natural world around him.” Lacking an animal’s “innate instinctual knowledge impelling him into the proper paths for the satisfaction of his needs and desires,” he understands that he must learn to find those paths. Because his island isn’t Eden, he needs to work, to ‘mix his labor’ with “the nature given resources and transform them into useful objects, shapes, and places most useful to him—so that he can satisfy his wants.” Clearly, no human being has ever lived this way, except for those removed by choice, by force, or by accident from family, tribe, or political community. Even Adam in Eden was quickly supplied with Eve because God judged that it was not good for the man to be alone. Alternatively, if one prefers the evolutionists’ account, the first biologically human being must have lived in a family, and quite likely a tribe, of proto-humans, where ruling and being ruled prevailed. Crusoe’s circumstance is in fact radically unnatural. In Aristotle’s more realistic account, families and extended families—already exercising political and other forms of rule— deal with scarcity by allying with other families, by extending political and other forms of rule to others.
On Crusoe’s island, man “must produce before he can consume, and so that he may consume.” In a family, this is true only of adults and older children; infants and toddlers do very little to mix their labor rationally with the world around them. Indeed, the only ‘labor’ an infant performs is sucking, and that is instinctual, animal-like, indistinguishable from the behavior of any other young mammal. However, as Rothbard and Aristotle both acknowledge, human nature quickly develops its innate capacity to reason and therefore to labor in the Rothbard-Lockean sense.
Reason teaches “the way things work in the world, i.e., the natures of the various specific entities and classes of entities that the man finds in existence; in short, he learns the natural laws of the way things behave in the world.” At the same time, “he learns about his own nature, about the sort of events and actions that will make him happy or unhappy”—his natural ends or purposes. His mind can then ‘mix’ with external matter, using mental and physical energy to reshape matter “into ways to sustain and advance his wants and his life”; that is, he learns means by which he can achieve his ends.
“The individual man, in introspecting the fact of his own consciousness, also discovers the primordial natural fact of his freedom: his freedom to choose, his freedom to use or not use his reason about any given subject. In short, the natural fact of his ‘free will.'” Further, by experiencing his mind’s natural “command over his body and its actions” he discovers “his natural ownership over his self.” This means that he can also distinguish between his natural freedom and his natural powers. “Man is free to adopt values and to choose his actions; but this does not at all mean that he may violate natural laws with impunity,” to do things beyond his natural capacities. He can’t fly, although he may learn to reshape external objects in ways that will enable him to be flown and to control the direction of the flight.
Here Rothbard departs from Aristotle and the classics generally, entering into the realm of Rousseauian thought. Notice that he takes freedom to be unalienable; the only natural limits to free action are power, which is not a moral category, and the prohibition of impinging on anyone else’s unalienable freedom. Aristotle would reply that human beings are not at all entitled to choose their own “values”—language absent from his philosophy. There are moral limits on human choices themselves, and those limits are imposed by the nature of the human soul, which, like the human body, can have good or bad characteristics, make good or bad choices respecting its well-being. Rothbard tacitly denies the human soul, tellingly referring to ownership over the “self.” That is, contra Rothbard, even a human being isolated on an island has moral obligations with respect to the ends he chooses, and not only physical limitations, quite apart from whether there are any other people around, and even quite apart from whether God is watching him.
Before elaborating on the effect of social relations on the protection of unalienable rights, Rothbard addresses economic relations. Production is necessary to man’s “prosperity and survival, but so also is exchange.” When the man Friday comes onto the scene, Crusoe might enter into a relation whereby he supplies fish and Friday supplies wheat. “This great gain for both men is made possible by two primordial facts of nature—natural laws—on which all of economic theory is based: (a) the great variety of skills and interests among individual persons; and (b) the variety of natural resources in geographic land areas.” Different individuals, working on different kinds of land (or, for that matter, the sea), will enable exchanges to multiply far beyond the capacities of any individual or small set of individuals. Although most immediately these persons are exchanging material goods, more precisely they are exchanging “not the commodities themselves, but the rights to ownership of them,” having already acquired those rights by ‘mixing’ their labor with the elements of nature to produce them. This also goes for the person who hires others to work for him. “The capitalist, far from somehow depriving the laborer of his rightful ownership of the product, makes possible a payment to the laborer considerable in advance of the sale of the product,” and indeed “saves the laborer from the risk that the product might not be sold at a profit, or that he might even suffer losses.” Labor service is itself a commodity; the powers of my body and mind, which are my property, are purchased by my employer. As long as I consent to this sale, including its terms and conditions, I am not his slave. “A person’s labor service is alienable, but his will is not.” “A man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement.”
This contrasts with Aristotle’s understanding of natural slavery (a point Crusoe’s inventor, Daniel Defoe, did not overlook when he introduced Friday to Crusoe). Aristotle sees that some human beings exercise their wills badly. Their nature lacks the capacity for rational action, either through some innate incapacity or an inveterate vice or set of vices. They do not make choices in Rothbard’s sense; they are ruled by their passions or by their instincts. They ought to be enslaved—nowadays, typically, in jails (in New Hampshire, for example, they are employed making license plates with the legend, “Live Free or Die,” which may be considered an attempt at moral instruction on the road to rehabilitation).
Rothbard thus bases social life on economic relations; economic relations maximize freedom, largely ignoring the question of whether what I freely choose is good. “The free market is necessarily embedded in a larger free society,” which includes property rights. “the regime of pure liberty…may be described as a society where no ownership titles are ‘distributed,’ where, in short, no man’s property in his person or in tangibles is molested violated, or interfered with by anyone else.” “This means that absolute freedom, in the social sense, can be enjoyed, not only by an isolated Crusoe but by every man in any society, not matter how complex or advanced”—in “a milieu of civilization, harmony, sociability, and enormously greater productivity through exchanges of property with his fellow men.” Rousseau rightly claims that men are born free, and Rothbard adds they “need never be in chains.” This sounds utopian, and it is, as will be seen soon enough.
“The society of absolute self-ownership for all rests on the primordial fact of natural self-ownership by every man, and on the fact that each man may only live and prosper as he exercises his natural freedom of choice, adopts values, learns how to achieve the, etc.” Any diminution of this freedom “violates his nature,” as the “aggressor interposes violence to thwart the natural course of a man’s freely adopted ideas and values, and…thwart[s] his actions based upon such values.” By valorizing freedom over other dimensions of human nature, Rothbard overlooks that a chosen “value” might be bad—as in Milton’s Satan’s classic formulation, “Evil be thou my good.” There is enough truth in what Rothbard says—to develop virtues, one must exercise and habituate the human soul, strengthening it to freely choose good things—to give it considerable surface plausibility. That is the the only kind of plausibility it has.
Regarding the cultivation of the outer world, Rothbard takes Locke’s view. I rightly own only so much land as I can mix my labor with. A Columbus could not claim ownership of a continent, even if it had been unoccupied. Neither he nor any other man can create matter; “what he does is to take nature-given matter and transform it by means of his ideas and labor energy.” “There are only two paths for man to acquire property and wealth: production or coercive expropriation.” The way of production is the way of economics; the way of coercion is political and indeed “parasitical.” Once again, Rothbard narrows ‘politics’ to considerations of power and one-way or ‘command’ rule. Aristotle knows better, acknowledging that ruling itself is as much a part of human nature as choice or freedom, and that what in the family he calls ‘marital’ rule, ruling and being ruled reciprocally, very much involves prudential reasoning. So does the parent-child relationship. Rothbard’s formulation enables him to wave politics away as pure evil. To Rothbard, all “political” rule is coercive, all coercion slavery. He reduces the three forms of ruling seen in the household as Aristotle describes it to one, and the worst one at that.
This gross simplification (mis)informs Rothbard’s conception of criminal law. “A criminal is anyone who initiates violence against another man and his property: anyone who uses the coercive ‘political means’ for the acquisition of goods and services,” a point which he considers as “the very heart of the entire problem of liberty, property, and violence in society.” Any property that has been acquired by means of coercion has been stolen; all property is private, including government property or territory ruled by a sovereign, since “there is no entity called ‘government'” but “only people forming themselves into groups called ‘governments’ and acting in a ‘governmental’ manner.” Any ‘government’ that uses coercion is criminal. ‘Political liberty’ must then be a contradiction in terms. This leads Rothbard to his well-known claim (radicalizing Bastiat) that all taxation is theft. All of this depends upon his false assumption that politics, including some forms of coercion, is unnatural to human beings, an assumption that flows from his mistaken claim a human individual in exercising rational choice can select whatever ‘values’ he wants.
Such mistakes don’t prevent Rothbard from seeing some things clearly and indeed astutely. For example, when the United States government defeated the Confederacy and ended slavery, Reconstruction or regime change in the former slave states failed because while “the bodies of the oppressed were freed…the property which they had worked and eminently deserved to own, remained in the hands of their former oppressors. With the economic power thus remaining in their hands, the former lords soon found themselves virtual masters once more of what were now free tenants or farm laborers.” Just so: the slaveowners had initiated unjust violence against the slaves; the United States government had employed, but not initiated, violent coercion on the slaveowners’ regime, but their just war to a substantial extent gone to waste because they failed to ‘win the peace’ by respecting the property rights of the slaves, rights exercised when they mixed their labor on the cotton and tobacco fields of the South. Rothbard wisely rejects pacifism, arguing that “defensive violence” may be used, although only “against an actual or directly threatened invasion of a person’s property,” including his life; such a threat may include intimidation (the threat of physical violence) and fraud, which is a form of theft.
What coercion may not attempt, in Rothbard’s view, is “mak[ing] people moral by use of legal violence”—as, for example, sumptuary laws. And violence must be (as it is in both just war theory and in most theories of justice generally) proportional to the crime. A storekeeper has no right “to kill a lad as punishment for snatching a piece of his bubble gum.” Rather, “the criminal, or the invader, loses his own right to the extent that he has deprived another man of his.” An eye for an eye, a tooth for a tooth, but not a life for an eye or a tooth. You are indeed entitled to ‘take the law into your own hands,’ but the law you wield must be the rational, natural law, not unbridled vengeance. In a “purely free-market society,” one ordinarily need not do so, however, but rather in effect hire others—police, judges—to exact justice on his behalf. Because one isn’t allowed, according to Rothbard, to make people moral coercively, the notion of criminal rehabilitation is off the table. Jails aren’t ‘penitentiaries.’ They may be the sites where some criminals repent, but their repentance and reformation is neither here nor there; only justly proportionate punishment matters. It is of course significant that Rothbard justifies third-party law enforcement and judging as “convenient.” The notion that third-parties acting as police and judges, ‘hired’ not by individuals but by—you may pardon the expression, although Rothbard wouldn’t—political societies might serve to prevent highly prejudicial defense of natural rights.
Rothbard gets around to the family only midway through the book, admitting that children pose a “difficult case” for his theory. Beginning with “the prenatal child,” he asserts an absolute right to abortion. “Every woman has the absolute right to her own body,” absolute “dominion” over it “and everything within it,” so long as her body isn’t deployed in a way to injure anyone else. But Rothbard includes the fetus (suddenly no longer a “prenatal child”) among those things. This ignores the fundamental distinction between something in a woman’s body because it is part of her body—the organs—or in it because it will soon be integrated into her body—food, drink—and a ‘fetus’ or prenatal child, which is neither one of her organs nor her last meal. “Should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic ‘invader of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as ‘murder’ of a living person, but as the expulsion of an unwanted invader from the mother’s body.”
But why? Only if one’s freely-chosen wants or desires are morally authoritative, dispositive. Rothbard claims that even if the fetus is a human being, no human beings have “the right to to be coercive parasites within the body of an unwilling human host.” Such an argument violates Rothbard’s own principle of proportionality. The parasitism of a human being, or of any being, within a human body would only be capitally punishable if its parasitism demonstrably threatened the life of its host. The parasitism of a prenatal human ordinarily does no such thing.
Families generally come into Rothbard’s view as property. The mother has “trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time.” Parents may “sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.” This makes sense—if one ignores the good of the child and the natural rule of parents over children for the good of the children. It exemplifies (to say the least) the narrowly economistic, anarcho-capitalist illusions upon which Rothbard grounds his theory.
Beyond family life, Rothbardian societies would have no public streets, only privately-owned ones, whose owners could exclude anyone they didn’t want from using them. There can be no libel laws, inasmuch as my knowledge of your shameful conduct is my property, and so may be disseminated by me without restriction. Further, I can blackmail you, if you don’t want me to ‘go public’ with that knowledge, as “both parties benefit from the exchange.” Similarly, there’s nothing wrong with bribery, except when the service you purchase is one that I have previously contracted with my employer to perform only on the terms my employer and I have agreed upon in our contract of employment.
This leads Rothbard to a consideration of political life itself, which he predictably stages as “the State versus Liberty.” Although “the State” does perform “many important and necessary functions, that does not mean that only the State can perform them. It may be that the State can be abolished and other institutions or practices can do them as well or better.” As it stands, the State enjoys a “crucial monopoly,” namely, “control of the use of violence,” including “the all-important power to extract its revenue by coercion.” All other transfers of income are voluntary, by sale or by gift; the state taxes, and “taxation is theft, purely and simply, even though it is theft on a grand and colossal scale which no acknowledged criminals could hope to match.” If the State attempted to operate on the basis of sales and gifts, it would never receive “anything comparable to the current vast revenues” it now exacts.
Rothbard denies the relevance of political regimes in this matter. Taxation is theft regardless of whether a country is ruled by one, few, or many. Democracies are nothing more than majority tyrannies. “The fact that a majority might support or condone an act of theft does not diminish the criminal essence of the act or its grave injustice,” any more than Jews murdered by their fellow Germans, most of whom had come to support the Nazis, went to the gas chambers voluntarily. Taxation under republican regimes, governed by representative, is even less a matter of consent than under straight majority rule. In fact, voting doesn’t even usually establish majority rule, since voter turnout rarely amounts to a majority of the adult population. If coercion is itself unjust, then political rule of any kind is unjust.
Here is where Rothbard departs from libertarians, or at least from most libertarians, who understand government as a form of contract. Such libertarians “hold the contract itself to be an absolute, and therefore maintain that any voluntary contract whatever must be legally enforceable in the free society.” But a contract “should only be enforceable when the failure to fulfill it is an implicit theft of property,” that is, “where title to property has already been transferred.” A mere promise to transfer my title of ownership to any alienable form of property that belongs to me is unenforceable by law, although it is usually the moral thing to do. “It is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality.”
Further, no one can transfer an unalienable right at all—very much including the natural right of liberty. Therefore, all social contract theories are illegitimate. “Setting aside the historical problem of whether such a social contract ever took place, it should be evident that the social contract, whether it be the Hobbesian surrender of all one’s rights, the Lockean surrender of the right of self-defense, or any other, was a mere promise of future behavior (future will) and in no way surrendered title to alienable property. Certainly no past promise can bind later generations, let alone the actual maker of the promise.” As for unalienable property rights, such as liberty, they are by definition non-transferrable.
Here Rothbard misreads Locke. No one who joins a social-contract civil society gives away the right to self-defense. If I am attacked, my attacker puts himself outside of the social contract; I don’t need to call 911. I am entitled to fight back. As for liberty, Locke explicitly argues that he who would deprive me of my liberty could, if he wished, take away my life also. I am therefore entitled to fight assaults on my liberty on the same grounds as I may fight assaults on my life. This is precisely the argument that Rothbard, following Lysander Spooner, aims at all governments. Taxation implies a command enforceable by violence—your money or your life, or more likely your liberty or your life. The same goes for conscription. I should (and in principle do) retain the right to fight back against any act that threatens my life by denying my liberty, including acts by governments. The difference between Rothbard and Locke consists in Locke’s argument for what might be described as primary and secondary levels of consent. In Locke, my explicit or implicit consent to live within a given civil society entails a primary obligation to abide by the terms of its social contract. If I disagree with a given command issued by the government, I am free to resist or to leave. If I resist in ways that conform to the legal terms of the contract, I should not be punished. If I resist in ways that do not so conform, then I have placed myself in a state of war with the society. That works the other way around, too. A government might act in such a way that puts itself at war with its citizens (if it is a republic) or its subjects (if it is ruled by one or a few). That was the argument of the American colonists in declaring their independence from the British regime.
Rothbard claims that the only reason that governments get away with their criminal activities is through control over education and communications. They control their subjects’ bodies because they control their minds. The State grants money, power and prestige to “intellectuals” who otherwise would find an exceedingly small market for their services. “Thus, the State is a coercive criminal organization that subsists by a regularized large-scale system of taxation-theft, and which gets away with it by engineering the support of the majority (not, again, of everyone) through securing an alliance with a group of opinion-molding intellectuals whom it rewards with a share in its power and pelf.” And the State backs up both its physical coercion and its mind control by asserting sovereignty over territory as well as bodies and minds. Ultimately, only “the force of habit” enables “State rule”—a certain supine acquiescence fortified with fear and propaganda.
If his is true, what practical options does Rothbard condone? If I really believe that taxation (and/or conscription) is unjust in principle, I could leave the civil society and find myself a spot where the tax cops can’t find me. I could, as Rothbard says, vote for candidates who intend to “reduce or get rid of State power.” I could lie to the State, which Rothbard regards as “morally legitimate.” Or I could refuse to pay taxes or to report for military duty, becoming a conscientious objector. Or, I could engage in violent rebellion, taking care to observe the Rothbardian principle of proportionality. What I cannot do is to receive the benefits of civil society and expect to pay nothing for them.
Rothbard also faults libertarians for supposing limited government and laissez faire to be possible. This is a “Utopia,” he claims. “Surely the bloody record of States throughout history should have demonstrated that any power, once granted or acquired, will be used and therefore abused. Power corrupts….” For some reason, Rothbard overlooks whether his anarcho-capitalist notion might be at least as utopian. Anticipating this criticism, he cites the example of “non-state institutions,” such as tribal custom, common-law judges and courts, mercantile courts, and admiralty law enforced by shippers. In Ireland before Cromwell, there was no State, only institutions upholding “customary rules were not haphazard or arbitrary, but consciously rooted in natural law, discoverable by man’s reason.” Grant all that and the difficulty remains: What happens when Cromwell arrives?
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