The Right to Self-Defense

Email Print
FacebookTwitterShare


DIGG THIS

This article
is excerpted from chapter 12 of The
Ethics of Liberty
. Listen to this
article in MP3
, read by Jeff Riggenbach. The entire book is
being prepared for podcast
and download
.

If
every man has the absolute right to his justly-held property it
then follows that he has the right to keep that property
– to defend it by violence against violent invasion.

Absolute pacifists
who also assert their belief in property rights – such as Mr.
Robert LeFevre – are caught in an inescapable inner contradiction:
for if a man owns property and yet is denied the right to defend
it against attack, then it is clear that a very important aspect
of that ownership is being denied to him. To say that someone has
the absolute right to a certain property but lacks the right to
defend it against attack or invasion is also to say that he does
not have total right to that property.

Furthermore,
if every man has the right to defend his person and property against
attack, then he must also have the right to hire or accept the aid
of other people to do such defending: he may employ or accept defenders
just as he may employ or accept the volunteer services of gardeners
on his lawn.

How
extensive is a man’s right of self-defense of person and property?
The basic answer must be: up to the point at which he begins to
infringe on the property rights of someone else. For, in that case,
his “defense” would in itself constitute a criminal invasion of
the just property of some other man, which the latter could properly
defend himself against.

It follows
that defensive violence may only be used against an actual or directly
threatened invasion of a person’s property – and may not be
used against any nonviolent “harm” that may befall a person’s income
or property value. Thus, suppose that A, B, C, D … etc. decide,
for whatever reason, to boycott the sales of goods from
Smith’s factory or store. They picket, distribute leaflets, and
make speeches – all in a non-invasive manner – calling
on everyone to boycott Smith. Smith may lose considerable income,
and they may well be doing this for trivial or even immoral reasons;
but the fact remains that organizing such a boycott is perfectly
within their rights, and if Smith tried to use violence to break
up such boycott activities he would be a criminal invader of their
property.

Defensive violence,
therefore, must be confined to resisting invasive acts against person
or property. But such invasion may include two corollaries to actual
physical aggression: intimidation, or a direct threat of
physical violence; and fraud, which involves the appropriation
of someone else’s property without his consent, and is therefore
“implicit theft.”

Thus, suppose
someone approaches you on the street, whips out a gun, and demands
your wallet. He might not have molested you physically during this
encounter, but he has extracted money from you on the basis of a
direct, overt threat that he would shoot you if you disobeyed
his commands. He has used the threat of invasion to obtain your
obedience to his commands, and this is equivalent to the invasion
itself.

It is important
to insist, however, that the threat of aggression be palpable, immediate,
and direct; in short, that it be embodied in the initiation of an
overt act. Any remote or indirect criterion – any “risk” or
“threat” – is simply an excuse for invasive action by the supposed
“defender” against the alleged “threat.” One of the major arguments,
for example, for the prohibition of alcohol in the 1920s was that
the imbibing of alcohol increased the likelihood of (unspecified)
people committing various crimes; therefore, prohibition was held
to be a “defensive” act in defense of person and property. In fact,
of course, it was brutally invasive of the rights of person and
property, of the right to buy, sell, and use alcoholic beverages.

In the same
way, it could be held that

  1. the failure
    to ingest vitamins makes people more irritable, that

  2. the failure
    is therefore likely to increase crime, and that therefore

  3. everyone
    should be forced to take the proper amount of vitamins daily.

Once we bring
in “threats” to person and property that are vague and future –
i.e., are not overt and immediate – then all manner of tyranny
becomes excusable. The only way to guard against such despotism
is to keep the criterion of perceived invasion clear and immediate
and overt. For, in the inevitable case of fuzzy or unclear actions,
we must bend over backwards to require the threat of invasion to
be direct and immediate, and therefore to allow people to do whatever
they may be doing. In short, the burden of proof that the aggression
has really begun must be on the person who employs the defensive
violence.

Fraud as implicit
theft stems from the right of free contract, derived in turn from
the rights of private property. Thus, suppose that Smith and Jones
agree on a contractual exchange of property titles: Smith will pay
$1,000 in return for Jones’s car. If Smith appropriates the car
and then refuses to turn over $1,000 to Jones, then Smith has in
effect stolen the $1,000; Smith is an aggressor against $1,000 now
properly belonging to Jones. Thus, failure to keep a contract of
this type is tantamount to theft, and therefore to a physical appropriation
of another’s property fully as “violent” as trespass or simple burglary
without armed assault.

Fraudulent
adulteration is equally implicit theft. If Smith pays $1,000
and receives from Jones not a specified make of car but an older
and poorer car, this too is implicit theft: once again, someone’s
property has been appropriated in a contract, without the other
person’s property being turned over to him as agreed.[1]

But we must
not be led into the trap of holding that all contracts, whatever
their nature, must be enforceable (i.e., that violence may properly
be used in their enforcement). The only reason the above contracts
are enforceable is that breaking such contracts involves an implicit
theft of property. Those contracts which do not involve
implicit theft should not be enforceable in a libertarian society.[2]

Suppose, for
example, that A and B make an agreement, a “contract,” to get married
in six months; or that A promises that, in six months’ time, A will
give B a certain sum of money. If A breaks these agreements, he
may perhaps be morally reprehensible, but he has not implicitly
stolen the other person’s property, and therefore such a contract
cannot be enforced. To use violence in order to force A to carry
out such contracts would be just as much a criminal invasion
of A’s rights as it would be if Smith decided to use violence against
the men who boycotted his store. Simple promises, therefore,
are not properly enforceable contracts, because breaking them does
not involve invasion of property or implicit theft.

Debt contracts
are properly enforceable, not because a promise is involved, but
because the creditor’s property is appropriated without his consent
– i.e., stolen – if the debt is not paid. Thus, if Brown
lends Green $1,000 this year in return for the delivery of $1,100
next year, and Green fails to pay the $1,100, the proper conclusion
is that Green has appropriated $1,100 of Smith’s property, which
Green refuses to turn over – in effect, has stolen. This legal
way of treating a debt – of holding that the creditor has a
property in the debt – should be applied to all debt
contracts.

Thus, it is
not the business of law – properly the rules and instrumentalities
by which person and property are violently defended – to make
people moral by use of legal violence. It is not the proper business
of law to make people be truthful or to keep their promises. It
is the business of legal violence to defend persons and their property
from violent attack, from molestation or appropriation of their
property without their consent. To say more – to say, for example,
that mere promises are properly enforceable – is to make an
unwarranted fetish of “contracts” while forgetting why
some of them are enforceable: in defense of the just rights of property.

Violent defense
then must be confined to violent invasion – either actually,
implicitly, or by direct and overt threat. But given this principle,
how far does the right of violent defense go? For one thing,
it would clearly be grotesque and criminally invasive to shoot a
man across the street because his angry look seemed to you to portend
an invasion. The danger must be immediate and overt, we might say,
“clear and present” – a criterion that properly applies not
to restrictions on freedom of speech (never permissible, if we regard
such freedom as a subset of the rights of person and property) but
to the right to take coercive action against a supposedly imminent
invader.[3]

Secondly, we
may ask: must we go along with those libertarians who claim that
a storekeeper has the right to kill a lad as punishment for snatching
a piece of his bubblegum? What we might call the “maximalist” position
goes as follows: by stealing the bubblegum, the urchin puts himself
outside the law. He demonstrates by his action that he does not
hold or respect the correct theory of property rights. Therefore,
he loses all of his rights, and the storekeeper is within his rights
to kill the lad in retaliation.[4]

I propose that
this position suffers from a grotesque lack of proportion. By concentrating
on the storekeeper’s right to his bubblegum, it totally ignores
another highly precious property-right: every man’s – including
the urchin’s – right of self-ownership. On what basis must
we hold that a minuscule invasion of another’s property lays one
forfeit to the total loss of one’s own?

I propose another
fundamental rule regarding crime: the criminal, or invader, loses
his own right to the extent that he has deprived another
man of his. If a man deprives another man of some of his self-ownership
or its extension in physical property, to that extent does he lose
his own rights.[5]
From this principle immediately derives the proportionality theory
of punishment – best summed up in the old adage: “let the punishment
fit the crime.”[6]

We conclude
that the shopkeeper’s shooting of the erring lad went beyond this
proportionate loss of rights, to wounding or killing the criminal;
this going beyond is in itself an invasion of the property
right in his own person of the bubblegum thief. In fact, the storekeeper
has become a far greater criminal than the thief, for he has killed
or wounded his victim – a far graver invasion of another’s
rights than the original shoplifting.

Should it be
illegal, we may next inquire, to “incite to riot”? Suppose that
Green exhorts a crowd: “Go! Burn! Loot! Kill!” and the mob proceeds
to do just that, with Green having nothing further to do with these
criminal activities. Since every man is free to adopt or not adopt
any course of action he wishes, we cannot say that in some way Green
determined the members of the mob to their criminal activities;
we cannot make him, because of his exhortation, at all responsible
for their crimes. “Inciting to riot,” therefore, is a pure
exercise of a man’s right to speak without being thereby implicated
in crime.

On the other
hand, it is obvious that if Green happened to be involved in a plan
or conspiracy with others to commit various crimes, and that then
Green told them to proceed, he would then be just as implicated
in the crimes as are the others – more so, if he were the mastermind
who headed the criminal gang. This is a seemingly subtle distinction
which in practice is clearcut – there is a world of difference
between the head of a criminal gang and a soap-box orator during
a riot; the former is not, properly to be charged simply with “incitement.”

It should further
be clear from our discussion of defense that every man has the absolute
right to bear arms – whether for self-defense or any other
licit purpose. The crime comes not from bearing arms, but
from using them for purposes of threatened or actual invasion.
It is curious, by the way that the laws have especially banned concealed
weapons, when it is precisely the open and unconcealed
weapons which might be used for intimidation.

In every crime,
in every invasion of rights, from the most negligible breach of
contract up to murder, there are always two parties (or sets of
parties) involved: the victim (the plaintiff) and the alleged criminal
(the defendant). The purpose of every judicial proceeding is to
find, as best we can, who the criminal is or is not in
any given case.

Generally,
these judicial rules make for the most widely acceptable means of
finding out who the criminals may be. But the libertarian has one
overriding caveat on these procedures: no force may be
used against non-criminals. For any physical force used against
a non-criminal is an invasion of that innocent person’s rights,
and is therefore itself criminal and impermissible.

Take, for example,
the police practice of beating and torturing suspects – or,
at least, of tapping their wires. People who object to these practices
are invariably accused by conservatives of “coddling criminals.”
But the whole point is that we don’t know if these are
criminals or not, and until convicted, they must be presumed not
to be criminals and to enjoy all the rights of the innocent: in
the words of the famous phrase, “they are innocent until proven
guilty.” (The only exception would be a victim exerting self-defense
on the spot against an aggressor, for he knows that the
criminal is invading his home.)

“Coddling criminals”
then becomes, in actuality, making sure that police do not criminally
invade the rights of self-ownership of presumptive innocents whom
they suspect of crime. In that case, the “coddler,” and the restrainer
of the police, proves to be far more of a genuine defender of property
rights than is the conservative.

We may qualify
this discussion in one important sense: police may use such coercive
methods provided that the suspect turns out to be guilty,
and provided that the police are treated as themselves
criminal if the suspect is not proven guilty. For, in that case,
the rule of no force against non-criminals would still apply.

Suppose, for
example, that police beat and torture a suspected murderer to find
information (not to wring a confession, since obviously
a coerced confession could never be considered valid). If the suspect
turns out to be guilty, then the police should be exonerated, for
then they have only ladled out to the murderer a parcel of what
he deserves in return; his rights had already been forfeited by
more than that extent. But if the suspect is not convicted,
then that means that the police have beaten and tortured an innocent
man, and that they in turn must be put into the dock for criminal
assault.

In
short, in all cases, police must be treated in precisely the same
way as anyone else; in a libertarian world, every man has equal
liberty, equal rights under the libertarian law. There can be no
special immunities, special licenses to commit crime. That means
that police, in a libertarian society, must take their chances like
anyone else; if they commit an act of invasion against someone,
that someone had better turn out to deserve it, otherwise they
are the criminals.

As a corollary,
police can never be allowed to commit an invasion that
is worse than, or that is more than proportionate to, the crime
under investigation. Thus, the police can never be allowed to beat
and torture someone charged with petty theft, since the beating
is far more proportionate a violation of a man’s rights than the
theft, even if the man is indeed the thief.

It should be
clear that no man, in an attempt to exercise his right of self-defense,
may coerce anyone else into defending him. For that would mean that
the defender himself would be a criminal invader of the rights of
others. Thus, if A is aggressing against B, B may not use force
to compel C to join in defending him, for then B would be just as
much a criminal aggressor against C.

This immediately
rules out conscription for defense, for conscription enslaves
a man and forces him to fight on someone else’s behalf. It also
rules out such a deeply embedded part of our legal system as compulsory
witnesses. No man should have the right to force anyone else
to speak on any subject. The familiar prohibition against coerced
self-incrimination is all very well, but it should be extended to
preserving the right not to incriminate anyone else, or
indeed to say nothing at all. The freedom to speak is meaningless
without the corollary freedom to keep silent.

If no force
may be used against a noncriminal, then the current system of compulsory
jury duty must also be abolished. Just as conscription is a
form of slavery, so too is compulsory jury duty. Precisely because
being a juror is so important a service, the service must not be
filled by resentful serfs. And how can any society call itself “libertarian”
that rests on a foundation of jury slavery? In the current system,
the courts enslave jurors because they pay a daily wage so far below
the market price that the inevitable shortage of jury labor has
to be supplied by coercion.

The
problem is very much the same as the military draft, where the army
pays far below the market wage for privates, cannot obtain the number
of men they want at that wage, and then turns to conscription to
supply the gap. Let the courts pay the market wage for jurors, and
sufficient supply will be forthcoming.

If there can
be no compulsion against jurors or witnesses, then a libertarian
legal order will have to eliminate the entire concept of the subpoena
power. Witnesses, of course, may be requested to appear.
But this voluntarism must also apply to the defendants, since they
have not yet been convicted of crime.

In a libertarian
society, the plaintiff would notify the defendant that the latter
is being charged with a crime, and that a trial of the defendant
will be underway. The defendant would be simply invited to appear.
There would be no compulsion on him to appear. If he chose not to
defend himself, then the trial would proceed in absentia,
which of course would mean that the defendant’s chances would be
by that much diminished. Compulsion could only be used against the
defendant after his final conviction. In the same way,
a defendant could not be kept in jail before his conviction, unless,
as in the case of police coercion, the jailer is prepared to face
a kidnapping conviction if the defendant turns out to be innocent.[7]

Notes

[1]
For a development of libertarian principles of the law of adulteration,
see Wordsworth Donisthorpe, Law In A Free State (London:
Macmillan, 1895), pp. 132–58.

[2]
For a further development of this thesis, see the section “Property
Rights and the Theory of Contracts,” pp. 133–48 below.

[3]
This requirement recalls the scholastic doctrine of the double effect.
See G.E.M. Anscombe, “The Two Kinds of Error in Action,” Journal
of Philosophy 60 (1963): 393401; Philippa R. Foot, Virtues
and Vices (Berkeley: University of California Press, 1978),
pp. 19–25.

[4]
On the maximalist view, furthermore, socialists, interventionists
and utilitarians would, by virtue of their views, be liable to execution.
I am indebted to Dr.
David Gordon
for this point.

[5]
The great libertarian Auberon Herbert, in Auberon Herbert and J.H.
Levy, Taxation and Anarchism (London: Personal Rights Association,
1912), p. 38, put it this way:

Am I right
in saying that a man has forfeited his own rights (to the extent
of the aggression he has committed) in attacking the rights of
others? … It may be very difficult to translate into concrete
terms the amount of aggression, and of resulting restraint; but
all just law seems to be the effort to do this. We punish a man
in a certain way if he has inflicted an injury which lays me up
for a day; in another way if he takes my life…. There is
generally underlying it [the law] the view (which is, I think,
true) that the punishment or redress – both in civil and
criminal matters – should be measured by the amount of aggression;
in other words that the aggressor – after a rough fashion
– loses as much liberty as that of which he has deprived
others.

[6]
For a development of this theory of punishment, see the section
“Punishment and Proportionality,” pp. 85–96 below.

[7]
This prohibition against coercing an unconvicted person would eliminate
the blatant evils of the bail system, where the judge arbitrarily
sets the amount of bail, and where, regardless of the amount, poorer
defendants are clearly discriminated against.

Murray
N. Rothbard
(1926–1995) was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, For
a New Liberty
, The
Case Against the Fed
, and many
other books and articles
. He was
also the editor – with Lew Rockwell – of The
Rothbard-Rockwell Report
.

Murray
Rothbard Archives

Email Print
FacebookTwitterShare