Why Libertarians Should Continue to Accept the Non-Aggression Principle

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Matt Zwolinski, Associate Professor of Philosophy at the University of San Diego, wrote a short blog with the title “Six Reasons Why Libertarians Should Reject the Non-Aggression Principle”. I will provide reasons why libertarians should continue to accept the non-aggression principle (NAP) by arguing against all of Zwolinski’s reasons.

Zwolinski presents six reasons. I’ll start with his number 4. He writes “Libertarians usually say that violence may legitimately be used to prevent either force or fraud. But according to NAP, the only legitimate use of force is to prevent or punish the initiatory use of physical violence by others.”

The latter sentence, in which Zwolinski narrows down the NAP to exclude fraud, is entirely without foundation in fact. To see this, let’s compare what Murray Rothbard says in The Ethics of Liberty, p. 77.

“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.’”

A corollary is a statement that follows from one already proven. If defensive violence resists invasive acts against a self-owned person or justly acquired property, which Rothbard earlier makes clear are aggression, then it follows that direct threats and frauds against the same also justify defensive violence. Hence, Zwolinski’s number 4 is a completely baseless argument.

Now let’s take Zwolinski’s number 5 reason: “Even if the NAP is correct, it cannot serve as a fundamental principle of libertarian ethics, because its meaning and normative force are entirely parasitic on an underlying theory of property.”

This argument takes a virtue of libertarian theory, which is the identification of aggression with respect to violations of justly-owned property, and construes it as a vice. It also sets up a straw man, because libertarian theorists have always recognized the connection between aggression and justly-owned property. Furthermore, Zwolinksi’s statement fundamentally misdirects libertarian analysis away from an anti-state orientation because aggression against justly-owned property is one of the chief libertarian criticisms of the state.

Let’s first observe that libertarian theorists have fully recognized that aggression cannot be defined except in the context of justly-acquired property. What is more, in his introduction to The Ethics of Liberty, p. xii, Hans-Hermann Hoppe not only acknowledges this connection but applauds it as a major conceptual breakthrough of Rothbard:

“Even in the finest works of economics, including Mises’s Human Action, the concept of property had attracted little attention before Rothbard burst onto the intellectual scene with Man, Economy, and State. Yet, as Rothbard pointed out, such common economic terms as direct and indirect exchange, markets and market prices, as well as aggression, invasion, crime, and fraud, cannot be defined or understood without a prior theory of property.”

As Rothbard himself wrote in his preface to the same work (p. xlviii):

“The key to the theory of liberty is the establishment of the rights of private property for each individual’s justified sphere of free action can only be set forth if his rights of property are analyzed and established. ‘Crime’ can then be defined and properly analyzed as a violent invasion or aggression against the just property of another individual (including his property in his own person).”

The concept of aggression is not “parasitic” on a theory of justly-owned property, it is synergistic with such a theory. It adds a dimension that divides human action into non-violent and violent categories. The ideas of crime, aggression, and violent invasion add to the idea of property rights. They delimit those actions that are justified or allowable from those that are not. This demarcation is essential to libertarian analysis.

Then, to complete our rejection of Zwolinski’s number 5 argument, let’s note the importance and intimate linkage of aggression with respect to the nature of the state and a central libertarian critique thereof. To quote only one passage of Rothbard (p. 172):

“The State may therefore be defined as that organization which possesses either or both (in actual fact, almost always both) of the following characteristics: (a) it acquires its revenue by physical coercion (taxation); and (b) it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area. Both of these essential activities of the State necessarily constitute criminal aggression and depredation of the just rights of private property of its subjects (including self-ownership).”

Zwolinski’s argument number 1 is that the NAP “prohibits all pollution”, even minor pollution: “Not just industrial pollution, but personal pollution produced by driving, burning wood in one’s fireplace, smoking, etc., runs afoul of NAP.”

We will find that Zwolinski ignores Rothbard’s most unassailable and nuanced work when that is convenient, as in numbers 4 and 5, and now number 1, but that he does not ignore Rothbard’s arguments when they are more controversial, as in number 6.

Regarding number 1, Zwolinski is again arguing in a vacuum that has wiped out all traces of Rothbard’s endeavors on this matter, which in this case can be represented by his extensive essay Law, Property Rights, and Air Pollution. The result is that Zwolinski is simply wrong to say that the NAP prohibits all pollution. The very opposite is the case in that Rothbard’s application of the NAP to air pollution is at great pains to arrive at law principles that define property rights in difficult cases like air. In this essay, Rothbard presents his ownership theory of the “technological unit” of land and air and relates it to the existing judicial theory of “zone”. He brings in nuisance law. He specifically argues that to prove aggression from pollutants or odors, “the plaintiff must prove actual harm” as well as “strict causality” and “beyond a reasonable doubt.”

Zwolinski’s number 3 is that the NAP has an “all-or-nothing attitude toward risk.” The question raised is what the NAP implies with respect to actions by person A that may or may not injure person B. The example he leads off with is easily disposed of. “…what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger? What if it is not one bullet but five?”

Rothbard did not regard the NAP as a self-contained answer to all questions of crime and tort, but as a guiding principle or paradigm whose implications needed to be unfolded when confronted with particular cases. This is why he grappled with non-obvious cases in The Ethics of Liberty. In Law, Property Rights, and Air Pollution, Rothbard goes some distance in extracting useful principles from the existing body of law while discarding law if it’s at variance with the NAP or otherwise amending or replacing it with newly-conceived libertarian-based law. He accepted some parts of tort law, such as the treatment of harm as a physical invasion of person or property. He supported strict liability. He discarded other parts such as a property right in one’s reputation. While one may debate any of his arguments, one cannot claim that the NAP by itself provides all answers to questions of justice or that Rothbard made that claim.

Rothbard wrote

“To be a tortious assault and therefore subject to legal action, tort law wisely requires the threat to be near and imminent. Mere insults and violent words, vague future threats, or simple possession of a weapon cannot constitute an assault; there must be accompanying overt action to give rise to the apprehension of an imminent physical battery. Or, to put it another way, there must be a concrete threat of an imminent battery before the prospective victim may legitimately use force and violence to defend himself.”

If person A points a loaded revolver at B’s head and squeezes the trigger, even with one bullet in it, he is creating a near or imminent risk or threat to person B. This is a tortious assault. The NAP isn’t going to say this is a “permissible” activity or risk. But this does not imply that building a safe skyscraper that has 1 chance in 1 billion of falling down and killing people is also not permissible. In this case, there is no tortious assault because there is no imminent and concrete threat.

Once we work out the implications of the NAP with the help of jurisprudence that overlaps it and allows us to define what is or is not aggression against justly-owned property, we do not conclude, as does Zwolinski, that we need a  “radical paradigm shift in which we put aside the idea that non-aggression is the sole, immovable center of the moral universe.” Instead, we realize that the NAP is a useful building block to libertarian thought and law. At the same time, we are not making it into a straw man like “the sole, immovable center of the moral universe.” To quote Walter Block:

“…libertarianism is a theory concerned with the justified use of aggression, or violence, based on property rights, not morality.”

And, while I am on the subject of paradigm shifts, it does take a theory to beat a theory, and where, may I ask, is Zwolinski’s new paradigm with which to replace the current one? What is the current one? According to Block,

“If the non-aggression axiom is the basic building block of libertarianism, private property rights based on (Lockean and Rothbardian) homesteading principles are the foundation.”

Self-ownership is an alternative way of starting out.

We have two more of Zwolinski’s reasons to go, numbers 2 and 6. Number 2 is that “No amount of aggression, no matter how small, is morally permissible. And no amount of offsetting benefits can change this fact.” Zwolinski gives two examples. The “more plausible example” Zwolinski gives is that it could be the case that a small aggression by the state, such as a tax on billionaires, could produce a large benefit if the funds were used to vaccinate poor children. (Can we presume that the children would have a choice in the matter? I guess not. After all, what’s a little aggression on them if it does them so much good?)

This reason trashes the NAP in favor of what seems to be, but is not, a reasonable consideration of a menu of possible do-good causes, although the menu isn’t mentioned and neither are the mechanisms that must exist to implement the items on the menu.

Here is an argument against this thinking. A proposal like this and a mechanism to accomplish it do not exist in isolation. There are many, many other such possible cases. In fact, there are so very many other such possibilities that they give rise to an argument in support of the NAP. If the state has power to do the good causes, defined as such by the millions of those with do-good causes in mind, will we not end up with an impossibly contentious and irrational outcome? Who is to decide which subset of all the good causes to select? How do they know they are good? What criteria shall they use? How are they to decide who will pay for them? If we do not stand by a principle like NAP that precludes the invasion of justly-owned property by the state or by private parties, then what replaces it? What concept of justice replaces the concept of justly-owned property? And what are the economic, political and social consequences of relying on a concept of justice that denies the NAP? Don’t we already have a situation in which the government pretends to enforce ideas of justice that conflict with the NAP? And what are the observed results? Is it so clear that they are good results as compared with times and places when adherence to an NAP-like idea was more prevalent? If a state is created that carries out the do-good causes that violate the NAP, what is to prevent it from doing what it pleases? What gives any state or any contingent of people the right to set themselves up as the ones with the guns aimed at the heads of those whose resources they aim to extract in the name of their “good causes”? Other than possibly defensively, can justice ever be obtained at the point of guns?

Zwolinski’s argument 2 against the NAP cannot be as he characterizes it, a matter of a “minor aggression” in return for a “tremendous benefit”. It is a change in kind of system altogether, not merely a change in degree. The endorsement of a “minor aggression” entails a blessing of a radically different way of acting and a radically different system of carrying out those actions. This argument is radically anti-libertarian.

We come to number 6, which is that “the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death.” Rothbard’s analysis of children and rights is here. Rothbard did reach the conclusion that Zwolinski provides.

“Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.”

Walter Block has elaborated a different theory that reaches a very different conclusion:

“Children…may be controlled by parents, under a very different type of legal provision, not ownership, of course, but, rather, attainment and retention of guardianship rights. This means that as long as the parent is properly guarding, safe-guarding, caring for, bringing up, the child, he maintains his right to continue to do so.”

“How are these rights first established? In the good old fashioned way: through pregnancy and child birth of course. The parents in effect ‘homestead’ not of course any ownership over their children which do not and cannot exist, but rather guardianship rights over them.”

“May they give up these rights? Yes. To the extent a person may not give up, or sell, or relinquish rights, it is to that extent he does not really fully own them. If the parents do not continue to feed, clothe and otherwise care for their children, or abandon them, they lose these guardianship rights.”

There are other libertarian positions that differ from both Rothbard and Block. I take the position that, contrary to Rothbard, allowing one’s child to starve to death is murder. This position means that a child has a right to life, and it means, contrary to Block, that a parent has an obligation to care for a child, not simply to maintain guardianship rights.

The questions raised by these differences revolve around what the rights are of the parent and the child and what actions constitute aggressions or rights violations, be they torts or crimes. The NAP does not by itself provide an answer in this case, as it did not in the case of threats (number 3). However, the discussion is still framed within the terms of property, crime, and aggression. We may have different answers but we all still maintain the NAP as a principle. This is not an unusual situation for questions of this kind that involve law, it not being an exact science. This fuzziness in application doesn’t mean that the NAP should be replaced by another libertarian paradigm. No candidate has been proffered anyway.

It pays to stick with the existing paradigm until a new one comes along that beats it. Inadequacies of an existing theory are not enough to justify dropping it if there is no better one to replace it. In the current case, however, the 6 inadequacies cited by Zwolinski vanish upon consideration.

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