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Rothbard’s
The Ethics of Liberty:
What
It Is and What It Is Not1
By
Candice Jackson
Ludwig
von Mises Institute
and
Pepperdine
University School of Law
What
It Is
In
his Introduction to Murray N. Rothbard’s The Ethics of Liberty,
Hans-Hermann Hoppe
correctly
observed that this work synthesized the Rothbardian social philosophy and
“restored
the
concept of property to its rightful position within economics” and political
philosophy.2
In
fact,
Rothbard not only restored the concept of property; he significantly improved
it. The Ethics
of
Liberty,
Rothbard’s treatise on political ethics, complements Man, Economy, and State,
Rothbard’s
economic treatise, thus forming a “unified system of rationalist social
philosophy”.3
In
this work, Rothbard did what the great philosophers and economists before him
failed to do:
he
seamlessly integrated economic science with rationalist ethics, answering the
“universal and
eternal
human dilemma”, as Dr. Hoppe puts it, “[W]hat am I permitted to do right now
and here,
given
that I cannot not act as long as I am alive and awake and the means or
goods which I must
employ
in order to do so are always scarce.”4
1
In
this paper, all italicized words within quotations appear the same in the
original unless otherwise noted.
2
Murray
N. Rothbard, The Ethics of Liberty (New York University Press, 1998) p.
xii.
3
Ibid,
p. xii.
4
Ibid,
pp. xxxiii, xiv.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
2
The
chain of reasoning that forms Rothbard’s synthesis of economics and ethics into
a
complete
social philosophy of liberty begins with natural law and places a carefully
defined
concept
of property rights at the center. Rothbard first defends the theory of natural
law as
developed
by the Scholastics, Grotius, Pufendorf, Burlamaqui, Vattel and others. He goes
on to
define
property in Lockean terms, but he builds upon the improvements made to Locke by
Spencer
and Spooner. Rothbard arrives at a theory of property rights that synthesizes
the long
history
of natural-rights philosophy and removes the internal inconsistencies that had
previously
prevented
the emergence of a complete libertarian social philosophy.
Rothbard
first explains that the justification for “natural law” is no more complicated
than
noting that the world “consists of a myriad number of observable things,
or entities…Since
the
world does not consist of one homogeneous thing or entity alone, it follows
that each one of
these
different things possesses different attributes, otherwise they would be the
same thing…[I]t
follows
immediately that they have different natures…If all things have natures,
then surely
man’s
nature is open to inspection.”5 The appropriate method of inspection, Rothbard expounds,
is
man’s reason. “Man’s reason is objective, i.e., it can be employed by
all men to yield truths
about
the world.”6
Citing Strauss,
Rothbard presents the argument that natural law, not
positivism,
is the rational doctrine on which to base a political philosophy. For, as
Strauss says,
“If
rational conduct consists in choosing the right means for the right end,
relativism [and
positivism]
teaches in effect that rational conduct is impossible.”7
The
validity of natural law thus established, Rothbard goes on to explain the
purpose of
natural-law
ethics: “The natural law, then, elucidates what is best for man—what ends man
5
Ibid,
pp. 9, 10.
6
Ibid,
p. 10.
7
Quoted
in Ibid, p. 8.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
3
should
pursue that are most harmonious with…his nature.”8 In contradistinction to
economic
science
and utilitarianism, which treat the ends man pursues as purely subjective
valuations,
Rothbard
notes that “in natural-law ethics, ends are demonstrated to be good or bad for
man in
varying
degrees; value here is objective—determined by the natural law of man’s
being.”9
An
important
feature of ethics, Rothbard insists, is that the rules thus objectively derived
are just, in
the
sense of being universally applicable for all men, in all places, at all times.
To
derive a social philosophy from natural law, Rothbard starts by analyzing a
“Crusoe
philosophy”.
Imagining that Crusoe has landed on a deserted island and has contracted
amnesia,
Rothbard
deduces the primary “inescapable facts” that confront Crusoe, namely, his own
consciousness
and body, and the secondary fact of his environment, the natural world. Faced
with
these inescapable facts, Crusoe learns that “he must (a) choose his goals; (b)
learn how to
achieve
them by using nature-given resources; and then (c) exert his labor energy to
transform
these
resources into more useful shapes and places.”10
Moving
from a Crusoe island to a world of social interaction, Rothbard deduces the
logical
possibility of a society in which each person is as free as the shipwrecked
Crusoe, yet
each
person is better off because of the opportunity to participate in
specialization and voluntary
exchange
with others. In a particularly eloquent passage, Rothbard says, “Absolute
freedom,
then,
need not be lost as the price we must pay for the advent of civilization;
men are born free,
and
need never be in chains. Man may achieve liberty and abundance,
freedom and civilization.
This
truth will be obscured if we persist in confusing ‘freedom’ with ‘power’”.11
8
Ibid,
p. 12.
9
Ibid,
p. 12.
10
Ibid,
p. 30.
11
Ibid,
pp. 41-42.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
4
In
an unfortunately brief passage, Rothbard clarifies the difference between
freedom and
power,
thus annihilating the claims of some modern philosophers who argue that freedom
is
illusory.
This distinction is a powerful response to those who would have us abandon the
pursuit
of
liberty because, they claim, man can never truly be free due to the constraints
of natural laws.
This
misunderstanding of freedom leads to the spurious idea that a truly free
society is utopian.
Rothbard
demolishes this charge by pointing out that these modern critics confuse
freedom with
power,
implying that restraints on man’s freedom imposed by other people are of
the same
quality
as restraints imposed by natural laws. Rothbard explains, “[W]hen we say
that ‘man is
not
‘free’ to leap the ocean’, we are really discussing not his lack of freedom but
his lack of
power
to cross the
ocean, given the laws of his nature and the laws of the world.” Rothbard says,
“Crusoe
is “absolutely free…in the sense of social freedom—of freedom as absence
of
molestation
by other persons”12 and shows how this same degree
of freedom13
is entirely
possible
even in a complex society.
Crucial
to a free society is Rothbard’s definition of ownership as control over
resources,
and
legitimate ownership as control over resources that are either (a) inalienable,
that is,
inseparable
from one’s person, such as one’s body and mind, or (b) homesteaded, that
is,
acquired
from a state of nature and transformed by one’s own labor. Ownership of a thing
thus
acquired
can only be transferred by a voluntary transfer of its property title from a
previous to a
later
owner (the title-transfer theory of contracts). These deceptively simple
deductions from the
axiom
of self-ownership make possible the systematic derivation of the “rights of
man”; that is,
the
entire libertarian system of law and justice.
12
Ibid,
p. 33.
13
Rothbard
prefers the term “liberty” to “freedom”, precisely because of the common
confusion of freedom with
power.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
5
Although
his definitions of legitimate property and the homesteading principle are
heavily
influenced by Locke, Rothbard improved Locke’s theory of property rights by
invalidating
Locke’s “proviso”, which has lead political philosophers such as Nozick to
conclude
that
no one may appropriate unused land if the remaining population who desire
access to land
would
be made worse off. Rothbard demonstrates that Locke’s proviso “may lead to the
outlawry
of all private ownership of land, since one can always say the reduction
of available
land
leaves everyone else, who could have appropriated the land, worse off.”
Rothbard
concludes,
“[E]ven if they are [worse off], I submit that this, too, is their proper
assumption of
risk…in
this free and uncertain world…Even Locke could nod once in a while.”14
Perhaps
the original contribution by Rothbard to the theory of property rights that is
most
monumental
is his insistence that property rights, as such, are not the central question
of the
ethics
of liberty. He explains, “In short, we cannot simply talk of defense of
‘property rights’ or
of
‘private property’ per se. For if we do so, we are in grave danger of
defending the ‘property
right’
of a criminal aggressor—in fact, we logically must do so. We may therefore only
speak of
just
property or legitimate property…”15 It is this crucial clarification of the concept of property
as
an issue of “legitimate” (or “just”) versus “illegitimate” (or “criminal”) that
leads directly to
Rothbard’s
classification of the state as illegitimate and criminal by its very nature, as
well as his
defense
of the free market that is free from the inconsistencies of utilitarian economics.
Rothbard
identifies the state by its most important characteristic: “All other persons
and
groups
in society…obtain their income voluntarily: either by selling goods and
services to the
consuming
public, or by voluntary gift. Only the State obtains its revenue by
coercion…That
14
Ibid,
pp. 244-245.
15
Ibid,
p. 52.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
6
coercion
is known as ‘taxation’…Taxation is theft, purely and simply.”16 The implication is as
follows:
“If, then, taxation is compulsory, and is therefore indistinguishable from
theft, it follows
that
the State, which subsists on taxation, is a vast criminal organization far more
formidable and
successful
than any ‘private’ Mafia in history.”17
As
for the concept of the state as a “necessary evil”, Rothbard trenchantly argues
that
while
the state is indeed evil, it is by no means necessary. “If, in fact, we cast a
cold and logical
eye
on the theory of ‘limited government’, we can see it for the chimera that it
really is, for the
unrealistic
and inconsistent ‘Utopia’ that it holds forth.”18 Rothbard points out that the
state has
many
incentives to extend its power and influence, but no incentive to remain
“limited” or
“minimal”.
Furthermore, Rothbard quotes Barnett on why “the State, qua state, therefore,
is an
illegal
system”; by its nature (taxation and monopoly of defense services) the state
violates its
own
laws that it sets down for its subjects. An additional contradiction inherent
in the concept of
limited
government is the question of “how much” taxation should be levied and “how
much”
protection
to provide. Rothbard points out that there is no logical stopping point; such
governmental
decisions can only be purely arbitrary. Thus, Rothbard’s anarchism follows
directly
from his definition of legitimate property rights, combined with a successful
critique of
the
logic of limited government.
What
It Is Not
By
Rothbard’s admission, his system does not attempt to answer the other universal
and
eternal
human dilemma: “What should I do right now and here, given that I have
certain
16
Ibid,
p. 162.
17
Ibid,
p. 166.
18
Ibid,
p. 175.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
7
inalienable
natural rights?” For example, while Rothbardian ethics positively identifies
man’s
right
to dispose of his own property as he wishes, it says nothing of the morality or
immorality
of,
e.g., suicide. Or, while Rothbardian ethics insists on a woman’s right to rid
her body of an
unwanted
fetus, it is silent on the morality of abortion.
Rothbard’s
rationalist ethics denote the “rights of man”, but conspicuously defer any and
all
discussion of the “oughts of man”. In short, the Rothbardian social philosophy
is a synthesis
of
economic science and political ethics, but it consciously ignores personal
ethics. Rothbard
says
explicitly, “It is not the intention of this book to…elaborate a natural-law
ethic for the
personal
morality of man. The intention is to set forth a social ethic of liberty.”19
The
significance of what The Ethics of Liberty accomplishes is difficult to
overstate.
With
its tightly-reasoned derivation from natural law theory, Rothbard deals a blow
to ethical
relativists
on the one hand, and to ethical revelationists on the other hand. For
utilitarians and
other
ethical relativists, Rothbard’s axiomatic-deductive proofs of the right to
self-ownership and
the
homesteading principle are devastating to their attempt to keep ethics outside
the realm of
science.
For traditionalists and other ethical revelationists, Rothbard’s explicit
reliance on
natural
law is devastating to their attempts to link all ethical propositions to
supernatural
revelation.
In short, Rothbard successfully refutes Dostoyevsky’s claim, If God is dead,
everything
is permissible. What becomes relevant for a defense of Rothbard’s system of
ethics,
however,
is not so much what The Ethics of Liberty does, but what it does not do.
Time
and again throughout the text, Rothbard draws the distinction between what the
ethics
of liberty says a man can do, and what a moral code might say a man should
do. When he
illustrates
the principle of double punishment, Rothbard is careful to emphasize that this
is an
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
8
“upper
bound to punishment—since it tells us how much punishment a victim may rightfully
impose…If
he [the victim] were a Tolstoyan, and was opposed to punishment altogether, he
could
simply forgive the criminal, and that would be that.”20
Similarly,
he states, “The right to blackmail is deducible from the general property right
in
one’s person and knowledge and the right to disseminate or not disseminate that
knowledge.
How
can the right to blackmail be denied?” Then, in a footnote Rothbard adds, “When
I first
briefly
adumbrated the right to blackmail…I was met with a storm of abuse by critics
who
apparently
believed that I was advocating the morality of blackmail. Again—a failure to
make
the
crucial distinction between the legitimacy of a right and the morality or
esthetics of
exercising
that right.”21
When countering
the libertarian “contextualist” argument involving socalled
“lifeboat
situations”, Rothbard acidly repeats the same disclaimer, “For we are
not…concerned
with all personal moral principles. We are not herewith concerned
whether it is
moral
or immoral for someone to lie, to be a good person…or be kind or mean to his
neighbors.
We
are concerned…solely with such ‘political ethic’ questions as the proper role
of violence, the
sphere
of rights, or the definitions of criminality and aggression.”22
There
are many inferences from Rothbard’s ethics of liberty that cause people to
instinctively
recoil in horror. I suggest that failure to distinguish between political
ethics and
personal
ethics is the root of most disputes with Rothbardian ethics by people who favor
liberty
yet
fear its moral implications. When analyzed within a framework of political, as
opposed to
19
Ibid,
p. 25. Interestingly, Rothbard gives no indication as to why he defers
discussion of personal ethics; e.g., is it
because
it is of no import for a philosophy to integrate both realms of ethics, or that
personal ethics cannot be
rationally
derived at all, or for some other reason?
20
Ibid,
p. 86.
21
Ibid,
p. 124.
22
Ibid,
p. 152.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
9
personal,
ethics, even Rothbard’s seemingly stringent or harsh implications become much
less
abrasive.
One
aspect of The Ethics of Liberty at which even the staunchest
libertarians often flinch
is
its treatment of fetal and children’s rights. Yet an important footnote near
the beginning of
this
chapter lucidly explains the importance of distinguishing the difference
between political
ethics
and personal ethics in the ensuing discussion:
What
we are trying to establish here is not the morality of abortion
(which
may or may not be moral on other grounds), but its legality,
i.e.,
the absolute right of the mother to have an abortion. What we
are
concerned with in this book is people’s rights to do or not to do
various
things, not whether they should or should not exercise such
rights.
Thus, we would argue that every person has the right to
purchase
and consume Coca-Cola from a willing seller, not that
any
person should or should not make such a purchase.23
Rothbard
here reminds his readers to be aware of the terms of debate on such
controversial
issues.
It matters greatly whether one is trying to establish the permissibility of
a behavior or the
goodness
of it, and The
Ethics of Liberty is concerned solely with establishing what is
permissible
within the framework of political ethics.
With
this in mind, Rothbard’s ostensibly bloodless identification of an unborn child
as a
“parasitic
‘invader’ of [the mother’s] body” and his conclusion that “should the mother
decide
that
she does not want the fetus there any longer, then…the mother has the perfect
right to expel
this
invader from her domain”24 becomes less shocking to the sensibilities. Rothbard argues
that
the
term “right to life” is ambiguous and empty, since any proper rights implied by
so-called prolife
advocates
are included in the concept of the right to self-ownership. Rothbard concludes,
“In
short,
it is impermissible to interpret the term “right to life” to give one an
enforceable claim to
23
Ibid,
p. 98n.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
10
the
action of someone else to sustain that life.”25 The legality of abortion turns
on the definitions
of
aggression and property; any appeals to the horror or immorality of abortion
must be deferred
to
a separate discussion.
Likewise,
Rothbard’s seemingly blithe assertion of the right of a parent to neglect his
child
is much more palatable: “[A] parent does not have the right to aggress against
his children,
but
also…the
parent should not have a legal obligation to feed, clothe, or educate
his
children…The
parent therefore may not murder or mutilate his child…But the parent should
have
the legal right not to feed the child, i.e., to allow it to die.”26 In a parenthetical statement
Rothbard
repeats, “Again, whether or not a parent has a moral rather than a
legally enforceable
obligation
to keep his child alive is a completely separate question.”
Are
these propositions difficult to accept when viewed as extensions of the
definition of
“rights”?
In light of the following elucidation of the concept of rights, its application
to abortion
and
children’s rights seems merely straightforward and logically consistent.
Rothbard explains,
“[T]he
very concept of ‘rights’ is a ‘negative’ one, demarcating the areas of a
person’s action
that
no man may properly interfere with. No man can therefore have a ‘right’ to
compel
someone
to do a positive act, for in that case the compulsion violates the right of
persona or
property
of the individual being coerced.”27
As
Rothbard points out, the political ethics of liberty, defined and applied in
this manner,
actually
enhances the opportunity for morality and goodness to flourish. For example,
instead of
seeing
a desperate “shortage” of babies going to adoptive homes as we do in today’s
society,
libertarian
laws would allow a “free market in children” that would “eliminate this
imbalance,
24
Ibid,
p. 99.
25
Ibid,
p. 99.
26
Ibid,
pp. 100-101.
27
Ibid,
p. 100.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
11
and
would allow for an allocation of babies and children away from parents who
dislike or do
not
care for their children, and toward foster parents who deeply desire such
children. Everyone
involved…would
be better off in this sort of society.”28 Along similar lines Rothbard
makes the
case
for the legality of many other actions that most people’s personal ethics
deem reprehensible
or
immoral.
It
is his rigorous logic and consistency that allows Rothbard to “solve” what seem
like
paradoxes
in the realm of political ethics, such as “lifeboat situations” and the famous
“fire in a
crowded
theater”, often used as justifications for the mitigation of absolute rights.
As
for lifeboat situations, Rothbard first emphasizes that such situations, by
definition,
are
not central to a system of ethics, since the goal is to form an ethic for the
way men generally
behave
in this world. However, Rothbard successfully refutes the implication that
since lifeboat
situations
(i.e., extreme circumstances that force a man to choose among perceived
absolute
ethical
rules) exist, they prove that ethical rules cannot be absolute at all. The
lifeboat situation
paints
the picture of a sinking ship with more passengers than the lifeboat can hold.
But
Rothbard
shows that the theory of self-ownership and property rights is easily applied
even to
this
dramatic “war of all against all” by asking insightfully, “Who owns the
lifeboat?” From
there,
the rules of legitimate ownership (or the principle of homesteading, if indeed
the lifeboat is
unowned)
apply in a straightforward manner.
With
similar ease and consistency, Rothbard dismisses the argument that the “fire in
a
crowded
theater” illustration somehow places a “check” on the absolute right to free
speech.
Rothbard
explains cogently, “[C]ouching the analysis in terms of a ‘right to free
speech’ instead
of
property rights leads to confusion and a weakening of the very concept of
rights. The most
famous
example is Justice Holmes’s contention that no one has the right to shout
‘Fire’ falsely in
28
Ibid,
p. 104.
Rothbard’s
The Ethics of Liberty…
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Candice Jackson
12
a
crowded theater, and therefore that the right to freedom of speech must be
tempered by
considerations
of ‘public policy’. And yet, if we analyze the problem in terms of property
rights
we
will see that no weakening of the absoluteness of rights is necessary.”29 In this line of
reasoning
Rothbard follows Justice Hugo Black, whom he quotes as saying, “We have a
system
of
property, which means that a man does not have the right to do anything he
wants anywhere
he
wants to do it…That is a wonderful aphorism about shouting ‘fire’ in a crowded
theater,” but
as
Justice Black continues, the point is not “what he shouted but [that] he
shouted.”30
For as
Rothbard
points out, either the shouting is being done on someone else’s property (if
the shouter
is
a patron) and thus violates the condition of his being there; or, the shouting
is being done by
the
theater owner, and thus violates the terms of quiet enjoyment of the show for
which the
owner
took his patrons’ money. Seen in this framework, no mitigation of the concept
of rights is
necessary
or justified.
This
kind of consistent application of the theory of self-ownership and property
rights,
derived
from natural law, is what gives Rothbard’s exposition a clear advantage over
prior
attempts
to defend liberty. As Hans-Hermann Hoppe points out, Rothbard never claimed
infallibility
for his system of political ethics. “In accordance with the tradition of
rationalist
philosophy
he merely insisted that axiomatic-deductive arguments can be attacked, and
possibly
refuted,
exclusively by other arguments of the same logical status.”31 Yet this “logical status” is
precisely
what political ethics had previously been lacking. Given its axiomatic base,
attacks on
Rothbard’s
ethics of liberty are logically confined to addressing the deductions and
processes of
reasoning
therein; charges against the personal morality of his system are invalid
because it
applies
(and aims to apply) solely to political ethics.
29
Ibid,
p. 114.
30
Ibid,
p. 115.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
13
In
addition to the sensitivity of the issues to which Rothbard explicitly applies
his
political
ethics, one other factor may contribute to the confusion between political and
personal
ethics
by those who take issue with The Ethics of Liberty; namely, the chapter
entitled “The
Moral
Status of Relations to the State.” Here and here alone, Rothbard uses the
phrases “morally
licit”
and “morally legitimate” to describe certain actions that fall within the
bounds of what
political
ethics deems permissible for man. For example: “Lying to the State, then, also
becomes…morally
legitimate.”32 (Emphasis
added.) And: “[I]t would be morally licit to leave
the
State’s army at any time, regardless of the terms of enlistment.”33 (Emphasis added.) The
change
in phrasing may open the door to confusion. It could be that Rothbard is making
an
exception
to his refusal hitherto to pronounce judgment on the personal morality
of an action,
since
until now he has reserved the term “morality” to denote the personal ethicalness
of the
action
involved (see above for examples). It seems that either (a) Rothbard is making
no
judgment
of personal morality but simply using “morally legitimate” as a synonym for
“legally
permissible”;
or (b) Rothbard uses the phrase “morally legitimate” to confer a judgment about
the
personal morality as well as the legal permissibility of the action.
Either explanation leads to
ambiguities
that may confuse the crucial distinction he has elsewhere worked to establish
between
political and personal ethics. For if explanation (a) is correct, why the
switch in
terminology?
Or if explanation (b) is correct, why does Rothbard concede to judge the
personal
morality
of, say, lying to the State while overtly refusing to judge the personal
morality of
abortion
or child neglect? This instance of possible ambiguity notwithstanding, Rothbard
elsewhere
expressly seeks to defend his system of political ethics from attack by those
who
would
level personal ethical judgments against its implications.
31
Ibid,
p. xxvii.
32
Ibid,
p. 183.
Rothbard’s
The Ethics of Liberty…
by
Candice Jackson
14
Seen
for what it is not, The Ethics of Liberty leaves the arena of
personal ethics open for
elaboration
by libertarian philosophers. Seen for what it is, The Ethics of
Liberty shines as a
monumental
achievement, meeting Rothbard’s goal of setting forth “a positive ethical
system…to
establish the case for individual liberty.”34
33
Ibid,
p. 184.
34
Ibid,
p. xlvii.