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
- the failure to ingest vitamins makes people more irritable, that
- the failure is therefore likely to increase crime, and that therefore
- 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.
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.
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.
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.
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. From this principle immediately derives the proportionality theory of punishment best summed up in the old adage: “let the punishment fit the crime.”
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.
 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.
 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.
 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.
 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 (19261995) 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.