– the political philosophy based on the concept of individual
rights – seems to be an inherently clear, unambiguous position.
Its fundamental principle, the principle that man’s rights to his
life, liberty, and property are noncompromisable foundations for
human coexistence in society, seems to offer a sufficient basis
for answering, or solving, all so-called social problems –
as libertarian literature amply demonstrates.
At first sight,
the debate seems easily localizable. It seems to affect no fundamental
principles but to involve merely a specific application of these
principles. If one reads some of the literature written concerning
the major impression each side give is that the other side is inconsistent,
that he fails to understand what the commonly agreed upon principle
of individual rights implies, and that once his inconsistency is
indicated to him, he (or them) will change his (or their) mind.
Surprisingly enough, this change of mind did not take place in the
last decade, though some "conversions" did take place.
Each side has its own arguments, and its own rebuttals of the other
side’s argument, and the debate seems to persist, not to die out.
of the present article is to show that what seems to be a fundamental
agreement concerning basic principles, uniting libertarians of both
traditions, is, to a large extent, an illusion. The illusion is
created both by the use of the same terminology (i.e., of individual
rights), and by the fact that there exists a large core of agreement
between the two camps – agreement concerning the principle
of individualism. But this agreement is much less thoroughgoing
than it seems.
I will try to show that the "political" debate –
what form should a free society take politically – anarchocapitalism
or limited government – follows from much deeper, though undetected,
disagreements. The most fundamental one is metaphysical:
What kind of freedom does human nature allow – and to what
extent is man unfree, or determined, in his actions?
disagreement is reflected in a variety of derivative disagreements:
Are values objective, as Rand claims, or are they inherently subjective,
as Rothbard implies? Does the principle of individual rights follow
from the principles of objective ethics, as Rand preaches,
or does it follow from a second-order understanding of the objective
moral principles that make possible individual, subjective,
first-order value systems, as Rothbard presupposes?
Does the principle
of individual rights, in any way, require for its implementation
any preceding contract, and does it rely on any moral principle
of the sanctity of promises and contracts, as is implied by Rand’s
Or does it rely on the metaphysical concept of a free will,
making the concept of "sacred contracts" superfluous?
I will try to show that these questions divide the two camps, and
that their legal recommendations, in specific cases, also differ.
Since I am
not a subjectivist, I do believe that there is right and wrong in
this debate. But I will not present any systematic argument to support
any position in this article. I will do that in a separate article.
In the present article, I only wish to point out that a proper understanding
and resolution of the debate that at present divides the libertarian
movement cannot stop at political examples and arguments. I must
go right back to metaphysical premises and examine them.
my point, and make my later, more abstract arguments easier to follow,
let us consider an example. I make a contract with you to exchange
my dog for your hen. I gave you my dog. You now say, "Sorry,
I refuse to give you my hen. I love it too much."
are morally in the wrong, and a just system of laws would imply
just that, when applied to this case. But why are you in
the wrong, what are your liabilities, and what is the way to right
the wrong? Here Rand and Rothbard would differ. Since neither of
them has ever considered in writing this specific example, I allow
myself to represent their positions as I understand them.
To begin with,
Rand would say that you are wrong because you have defaulted on
a promise contained in a contract. You owe me a hen, because you
have promised to give me one once you possessed my dog. Your debt
has been incurred by your promise. This is a matter for a civil
court, dealing with restoration of justice damaged by contract violation.
would say that you are in the wrong for a different reason. You
don’t owe me a hen. The hen is yours, and remained yours. As for
the contract, your default amounts to a cancellation of it. The
contract ceases to be valid once one of us refuses to abide by it.
But if so,
what makes you morally wrong? Simply the fact that you now control
a dog that belongs to me makes you a criminal. Once you have, by
refusing to fulfill your part of the contract, cancelled the contract,
you have thereby cancelled your right to control the dog. If you
continue to hold the dog, you are in the same category as a robber,
or a thief. You control and use property that belongs to another
without his permission, by force. Thus, the correct procedure to
right the wrong is for me to sue you at a criminal court.
difference: For a Randist, a promise creates an obligation. You
are free to make a promise. Once you have made it, you are not free,
morally speaking, to default on it. A later decision cannot cancel
the prior decision. Once you have promised to give your hen, when
certain conditions have been satisfied, the satisfaction of these
conditions transfers automatically the hen to me, from the point
of view of the right to own it. If you refuse to deliver the hen,
you are trying to detain the transfer of property that is already
not yours. But the dog does belong to you.
For a Rothbardian,
though, a promise does not create an obligation. A promise is a
declaration of an intended action, or a declaration of a present
decision to do something in the future. It has no moral significance
beyond that. The same fundamental freedom of choice that makes it
possible for you to promise makes it possible for you, later, to
cancel the promise. You cannot be sued for canceling promises.
But on the
other hand, for a Rothbardian, your property right cannot be transferred
without your consent. Thus, if you give somebody a dog on the condition
that you will get a hen from him, and he fails to deliver his part
in the contract, the condition for transfer of ownership is not
fulfilled, so the ownership has not been transferred (though the
physical transfer of the good in question did imply a transfer in
actual control of the property).
Thus, the injustice
incurred by a contract violation is not that a promise has been
broken. It is that a breach has been created between ownership and
control and that that breach is maintained by force (because you
refused to return the dog to me).
this creates practical differences between a Randist and
a Rothbardian, concerning their recommendations to handle this case
and other similar cases:
- A Randist
would demand, acting as a judge, that the contract be fulfilled,
or that the defaulter will recompense the injured party in accordance
with the value of the property he promised to transfer and failed.
In other words, if a hen costs now $30, and it should have been
transferred ten days ago, and the value lost by the fact of nontransfer
is $10, a Randist judge would order payment of $40 compensation.
But a Rothbardian
judge would demand the criminal to return a dog, not a hen –
or, equivalently, to pay for the value of the dog in the market
now (so as to enable the victim to buy a new dog) – and
also to pay, according to market rates, for the services provided
by the stolen dog throughout the period in which there was a
breach between ownership and control. If the contract was written,
say, 12 days ago, and at that time hens and dogs had the same
market price, but now, when the trial takes place, they
have different prices, the two judges would reach different
judge would demand compensation whenever a promise was unilaterally
made and broken (i.e., a promise of a gift, or of charity service).
A Rothbardian judge would not consider these legal matters –
though he may privately advise the victim to advertise the fact
of default as much as he can, so as to make the defaulter realize
that breaking promises is bad for your business reputation.
judge would have to defend, in court, a contract in which a
man sells himself to be a slave: once a man made a contractual
commitment to be a slave, and to forego any further freedom
of choice, he has to abide by his promise. A Rothbardian would
consider the contract cancelled the minute the slave refuses
to be a slave any more (thereby implying that the contract was
never valid). At the same time, if the slave got some money,
which he has been capable to continue to control independently,
for becoming a slave,
then he no more legally holds the money: the money belongs to
the deceived, purported slavemaster. Thus, the institutions
of justice should remedy the breach of control and ownership
These are considerable
differences between the two positions. But let us consider another
example, this time of a noncontractual nature.
Suppose I wake
up in the middle of the night and find you there, rushing out of
my window, with my watch at your hand. Obviously, you are a thief.
Obviously, I should take you to some form of court or other. Obviously,
you have initiated force against my right to my property. All these
points are agreed upon by libertarians, as well as most nonlibertarians.
There is, still,
however, a divisive question: on the basis of what authority (i.e.,
moral authority) do I take you to court? Do I have the right
to make you compensate me without a court action? Does your action
affect your rights? Here again, the Randist and the Rothbardian
would markedly differ. The Randist (as Paul Beaird has most convincingly
argued) would claim that by violating my property rights, you have
lost your property right to the same extent.
Moreover, your action justifies me in taking you to court, because
by consenting to live in a human society, you have consented,
in principle, to the fundamental principle underlying the possibility
of human coexistence in society: the principle of individual rights.
In a way, you have, by your action, breached a contract.
My appeal to
court is necessary to restore justice, because your action has been
a default on an implicit contract. I cannot, however, redress justice
by my own action, because any contract has, as Beaird has indicated,
a delivery clause and a recourse clause. Once you failed to deliver
(by violating my right to property), the contract is still in force.
In this case, the "implicit" contract between us allows
me only to take you to the police, because you have consented, by
being in this specific society, to be thus treated in the case of
breach of "social contract."
this is not a social-contract theory. It does not assume
that if we are all in a society that has some government or other,
we are all to be considered to have implicitly consented to the
rule of this government and to the authority of its laws. The social-contract
theory, as Hobbes has shown by example, allows for all sorts of
dictatorship and is incompatible with individual rights.
there is an element of "social contract" here, in the
following sense: individual rights are objective values, to be identified
by human consciousness as necessary conditions for human existence
in society. If one identifies these values, he thereby has to secure
some means of safeguarding these values by subscribing, voluntarily,
to a government that implements these principles – namely,
a minimal government.
This act of subscription (which, Beaird stresses, must be explicit
and voluntary) binds contractually all subscribers – both to
the principle of individual rights and to the authority of the government
to which they have subscribed to administer justice in accordance
with these rights.
Thus, any criminal
violation of rights is a breach of such a contract, and it must
be handled by the government, not by the victim. In other words,
the Randist analysis of the nature of crime implies the necessity
for a minimal government, which governs with the consent of the
To put the
issue more crudely, each crime is a case of contract violation.
Individual rights are enforceable, as legal principle, only on the
basis of contractual commitment to them. Thus, while individual
rights have objective validity as values, they have no legal force
without the consent of all concerned. In other words, if you did
not subscribe to any government, your rights have not been "translated"
to enforcible terms, and you have no right to use force (your
own force) to defend them.
tells a different story, a story in which no concept of "social
contract" plays absolutely any role, and in which individual
rights have nothing to do with anybody’s contractual subscription
either to the abstract principle or (additionally) to a government
enforcing it. Individual rights are natural, deriving from man’s
nature as a free being. A man has the right to his life, property,
and liberty independently of whether or not he lives in a social
context, subscribes to a government, or has made any direct or indirect
contractual commitments with others.
commitment, as we have seen above, has no independent moral significance
in Rothbard’s framework. A breach of contract is only bad because
it creates a breach of property ownership and its control –
and only when it produces this effect!
and Criminal Law
In order to
clarify the difference between the two points of view, an extra
bit of terminology is needed. This pertains, fundamentally, to the
difference between civil law and criminal law.
Civil law usually
pertains to offenses arising from contractual relations. A default
in delivery on a commercial contract is usually dealt with by a
civil court of law. Criminal law usually pertains to offenses against
individual rights (such as theft, murder, robbery, rape, etc.) that
do not involve any violation of preexisting contractual relations.
What makes these offenses "bad" is their being violations
of individual rights.
In terms of
this distinction, Rand’s position implies an implicit reduction
of criminal law to civil law – in the sense that any violation
of individual rights is conceptualized by reference to a preexisting
social contract (between the subscribers to government and their
government) that makes the violation punishable, or actionable.
Rothbard’s position implies an explicit reduction of civil law to
criminal law: a contract violation is bad only because, and to the
extent that, it involves dissociation of ownership and control.
This is a large
difference, and it relates directly to the opposing views concerning
minimal government. For Rand, the contract that makes individual
rights defensible is a contract with a government. Hence, for her,
libertarianism is impossible without a government: it presupposes
a government, albeit a minimal government.
individual rights are independent of any contract, they are natural,
and the fundamental defense of them is by the individual himself.
The marketing of defense services through defense agencies is not
in any way a necessary ingredient in the implementation of rights.
Rather, it is a special case of the principle of specialization
of services on the market, and has nothing to do with the moral
validity of individual rights, nor with their implementability.
What is the
root of the disagreement between Rand’s and Rothbard’s positions?
To answer that, it is important to understand on what basis each
of them establishes the moral validity of individual rights. Rand’s
concept of rights derives from her particular theory of values.
This, in turn, depends on her theory of man’s metaphysical freedom.
Similarly, Rothbard’s position is ultimately defensible through
recourse to his fundamental assumptions concerning values and human
Rand’s theory of human freedom, man’s only fundamental freedom,
the sole domain in which he is capable of being a "first cause,"
the only realm where he can exercise absolutely unpredetermined
choice, is his own consciousness. Man’s basic choice is between
identifying the facts of reality through an act of consciousness,
or evading the knowledge of these facts.
does not extend to man’s decisions and actions: Your decisions and
actions are the necessary product of your values and premises, Rand
claims. Your values and premises are the products of acts of identification.
You identify, as a value, whatever sustains your life.
You identify, as premise, any fact of which you are aware.
values are the products of two factors: your needs, or requirements
for survival, which are factual givens, over which you exercise
no choice, and your readiness to identify and acknowledge these
needs, over which you have voluntary control. But if you evade the
knowledge of your needs, they still exist, and so are, objectively
speaking, values, though they are unidentified values.
theory of man, however, assumes another dimension of freedom in
man: the freedom to make decisions, to originate action. For Rothbard,
values and their hierarchy are not the product of perception alone,
though, clearly, his writing implies that awareness of the facts
is highly relevant to your choice of values. (That is why you will
prefer three ounces of gold to two ounces of gold.)
But the ultimate source of values is your choices and there are
no subject-independent (or "objective") factors that determine
what your values should be.
does not assume, as Rand does, that your own life is necessarily
your highest value. He leaves the question of what is your highest
value outside of philosophical (and economical) discussion, to you.
This, observe, is not subjectivism in the sense that values are
arbitrary. It is subjectivism in the sense that the subject, not
the external facts, is assumed to be the source, or generator of
it is impossible, in Rothbard’s framework, to speak about any common
values that are thereby established as objective moral principles.
Rather, the principle of individual rights, in so far as any explicit
formulation is to be given to Rothbard’s implicit presentation,
is established on the second level of value analysis.
It is not a value in the economic sense; the question of the price
of individual rights cannot arise, because the concept of price
presupposes the concept of ownership, which presupposes the concept
of right to property.
It is, rather, established by reflection on the implications of
man’s metaphysical nature: as a fundamentally free agent.
if I understand him correctly, individual rights are self-evident
implications of the metaphysical nature of man for social coexistence.
The argument is mainly by elimination. Clearly, somebody must decide
what you will do: Why should it be, and how could it be, anybody
else but you? Again, somebody must decide what to do with the property
you have produced: How could it be anybody else but you?
The whole argument
presupposes that action (including use of property) requires
decision, and that there are no automatic solutions to the
problem: What action shall be taken, and by whom? Thus, the question
is who is to make the decision. In other words, man’s fundamental
metaphysical freedom to make decisions is a necessary component
of the argument.
argument does not require that other persons would either recognize
my rights or pledge themselves to respect them. No social contract
of any nature (and no preceding, large-scale comprehension of the
philosophical principles involved) is presupposed in the defense
of individual rights. Having the right to life, liberty, and property,
you automatically have the right to defend these rights, and you
only derivatively transfer the exercise of the right to a defense
agency of your choosing.
view of the fact that all violations of your rights (including what
Rand would have labeled "contract violation") are criminal,
in all cases the purpose of defense is to reclaim stolen property
(of goods or services or their equivalent). Hence, the consent of
the offender is not required, because his rights are not violated
in any way through the reclamation.
Thus, the fact
that Rothbard’s libertarianism is more "extreme" than
Rand’s, because she consents to a minimal government and he requires
abolition of all government, is not accidental. Neither does it
arise because one of them (or any of their followers) has committed
a trivial mistake in the understanding of agreed upon moral principles.
Randists and Rothbardians are not libertarians in the same sense
– though they talk a misleadingly similar language. They mean
different implications in the concept of rights – because they
have different metaphysical assumptions to back their endorsement
of the morality of the principle of individual rights in the first
more extreme than Rand politically because he is more extreme than
her metaphysically. Rand allows only freedom of consciousness. Rothbard
also allows freedom of decision. The choice between the two positions
cannot be consistently made on political grounds. It has to deal
with the basic metaphysical disagreement, and to deal with certain
corollaries of it as well, such as: Are there objective values?
Are values determined solely by my decisions, or by my awareness
of given facts?
while for Rand a promise (and any other decision) is a necessary
product of the totality of one’s premises and values, and once it
is made, it is a fact, which one can either identify
or evade, so that the immorality of breaking promises reduces
to the primary sin of evasion, for Rothbard a promise is
a reflection of a free decision, and a decision is valid
only till another decision supersedes it.
is excerpted from "Political Freedom and Its Roots in Metaphysics,"
Journal of Libertarian Studies, 1977, vol. 1, no. 3, pp.
See Ayn Rand, Capitalism:
the Unknown Ideal (New York: Signet Books, 1967); Murray
N. Rothbard, Man,
Economy and State with Power and Market (The Scholar’s Edition)
(Auburn: Ludwig von Mises Institute, 2009); Murray N. Rothbard,
a New Liberty (Auburn: Ludwig von Mises Institute, 2006);
and Morris and Linda Tannehill, The
Market for Liberty (Tannehill, 1970).
See Rand, Capitalism, pp. 329–338.
See Rothbard, For a New Liberty, pp. 47–78.
I could not find any explicit statement by Rothbard on this subject.
But his whole economic analysis is based on taking individual preference
scales as givens, on which praxeological analysis is based. While
Rothbard is evidently not an ethical subjectivist or irrationalist,
he never discusses, as I can ascertain, any moral principles apart
from those of individual rights. These, as discussed in Rothbard,
For a New Liberty, pp. 23–46, are discussed independently
of any discussion of individual values.
This is my understanding of the argument in Rothbard, For a New
Liberty, pp. 23–46.
See Rand, Virtue of Selfishness, pp. 110–111, 116–117,
as well as Paul Beaird, "On Proper Government," Option
Rand, Virtue of Selfishness, pp. 110–111.
Rothbard, Man, Economy and State, pp. 152–153.
Indeed, one of the inherent difficulties of the concept of self-sale
to slavery is the inability of the slave to continue to possess
any personal property. If slavery means total obedience to one’s
master, how can a slave refuse an order to transfer his property
to his master?
Beaird, "Proper Government," p. 16.
Rand, Virtue of Selfishness, p. 110.
Rothbard, For a New Liberty, p. 2, and especially pp. 28–30,
where Rothbard explicitly disconnects rights from any government
Rand, Virtue of Selfishness, chap. 1.
See Rothbard, Man, Economy and State, pp. 260–268.
This is my interpretation of arguments such as those in Rothbard,
For a New Liberty, pp. 26–28.
Indeed, the concept of defense agencies introduces the issue of
the price of defense of rights. But this issue is irrelevant, because
an individual has rights even if he chooses to defend them himself,
and not to relegate his defense to a specializing defense agency.
Rothbard, Man, Economy and State, p. 771.
was professor in the Department of Philosophy at La Trobe University,