I’ll answer briefly the questions about the sailboat case that I raised.
1. Does absolute ownership in this case imply RB may cause a life to end?
Yes, it does. To soften this result, you, I and RB would not toss the girl back to the sharks. She runs a risk that the sailors in the boat are Marquis de Sade and Richard Speck. This cannot be attributed to absolute ownership.
2. Did RB end the life indirectly or directly? Is gentle eviction from the boat a fiction? Does gentle eviction get RB off the hook?
If her life is ended, it’s directly. Gentle eviction is a fiction in this case. If there is justice beyond property ownership, RB are not off the hook. Such justice would have to consist of rules beyond property ownership.
3. Do RB have obligations outside of libertarian law? If so, where do they come from? If so, does that mean libertarian law is defective or needs to be supplemented?
Yes, they have obligations; that’s my opinion, not a standard libertarian view. They come from rules of the “human” road, and I’m unsure where they come from and how to integrate them with property ownership. But we typically know right from wrong in many situations.
4. Have RB interpreted libertarian law correctly?
Yes, I think so.
5. What happened to Rothbard’s theory of proportionality in punishment? Why does it or a variation or extension of it not apply?
The proportionality idea says that meeting trespass with killing is over-doing it. It has been ignored, and that’s a puzzle or challenge. It should apply, but the problem is that there can’t be proportionality. It’s either save her or kill her, allow trespass or kill her. Proportionality should be replaced here by future payment. The girl can have her parents compensate RB later for the inconvenience she’s causing.
6. Is the ten year old guilty or innocent? Do the circumstances in some way mean that she’s not trespassing? Why are her rights inferior?
She’s innocent, having no intent to trespass and being forced into it by circumstances. She’s an innocent trespasser. She has no right to be on the boat within property rights theory. By a “higher” law, she may claim refuge; but the libertarian theory doesn’t go into that.
7. Why must there be an end to the trespass, if there is one? Why do RB’s absolute rights prevail?
There does not have to be an end to the trespass. That’s up to the sailors. Their rights to their property prevail in the theory, but not necessarily in the ethical reality in which we live. That ethical context isn’t in libertarian law.
8. Does the situation call for a reworking of rights in this 3-person society, or must we stick to the rights as previously defined?
No reworking is needed. Property rights are well-defined. But the relations between those rights and other sources of ethical principles or law are murky.
9. If it is moral to save the girl (Rothbard acknowledges that he’s concerned with legal rights not the morality of abortion), is it a failing of libertarian law not to handle it in a case as startling as this one?
Yes, it’s a failing. However, it’s by no means fatal because we cannot know what law will emerge through market processes, given a chance to. I think what might happen in a private law society is that insurers would incorporate ethical provisions into their agreements.
5:26 pm on June 1, 2019
