More on Liberty and Homer: Tacitus, Montesquieu, and Humboldt

As I have discussed before here, there is a way of writing about liberty in a conscious focus on political thought, which finds liberty to be emulated in some respect, going back at least to the first century Roman historian Tacitus. He was referring to the condition of the ancient Britons, within the Roman Empire, but rebelling against it, and the ancient Germans who could not be incorporated into the Empire.

The latter situation may have been at least as much for economic reasons as for the German fighting spirit, but they were certainly difficult to overcome and inflicted one of the great defeats on the Roman legions, at the height of Roman power in the Battle of the Teutoburg Forest in 25CE.

The image of barbarian liberty in Tacitus was certainly in some part shaped by Homer given the deep impact of Greek culture on the Romans, and most relevantly in this instance through the continuation of Homer in the greatest latin epic, Aeneid, which links Rome with the Trojan prince Aeneas. As I pointed out before here, Tacitus’ idea of barbarian liberty strongly influenced Montesquieu’s The Spirit of the Laws (1748, a work I will be posting on in future), whose view of liberty in modern Europe, in brutal but meaningful summary, was of a combination of Roman law and Germanic individualism.

Montesquieu was of course a great part of Classical Liberalism and we can follow up his interest in barbaric liberty with reference to other classical liberals. David Hume and Adam Smith, who were writing after Montesquieu, tended to write on ‘barbarism’ and a related idea of ‘savagery’ with some anxiety regarding the possibility that such societies, or societies closer to that stage than those European nations where civil society had advanced the most, might overwhelm commercial legalistic nations with their unrestrained force.

However, some element of respect for liberty in the most simple societies does manifest itself at times, but mostly through an interest in the earliest stages of the Roman and Greek republics of antiquity, which in Montesquieu’s thinking come between the Germanic individualism and the late Roman legalism. Tacitus was thinking of the ‘virtue’ (in the sense of patriotic courage and love of law) of the early Romans when addressing the courage, rough individuality, and fierce independence of the Britons and Germans.

The most interesting way of linking back from Enlightenment liberalism of the Eighteenth century, for me at least, is via Wilhelm von Humboldt, a thinker I will address in at least one dedicated post in future. Humboldt’s major contribution to political thought, The Limits of State Action, was written in the 1790s, so another generation on from Montesquieu, just after Smith and Hume.

At this point, we might think of a movement from Enlightenment to Romanticism in European thought. While we should be very careful about such general distinctions, and amongst other things not engage in simplistic oppositions, it is appropriate to think of Humboldt as belonging to a phase of interest in the history and current meaning of aesthetics, literature, culture, and language as part of the study of political ideas.

He was in fact a major thinker about language and the infinite capacities inherent in the combinatory nature of language, which was part of his thinking about individual human capacity and the power of voluntary co-operation.

It is the interest in aesthetics, language, culture, historical existence, and the capacity of the inner human which makes him ‘Romantic’ rather than ‘Enlightened’, though again we should avoid stereotype and simple opposition here. Humboldt was very much not against Enlightenment respect for reasons, and some of these ‘Romantic’ themes are in ‘Enlightenment’ texts.

One of the earlier big classics of Enlightenment, The New Science (1725, 1744) by Giambattista Vico, is a good example and that is a book giving great importance to Homer. Vico is someone else who merits at least one dedicated post, so there will be more about him at some point. I am not aware of any evidence that Humboldt read Vico, but he certainly made an impression on German thinkers of the time.

Anyway, Humboldt was a learned classicist from a philological and literary way, which has an impact on his idea of how liberty was strengthened in antiquity, which compensated for the tendency of the ancient state to interfere in the soul, as Humboldt thinks of antique laws and institutions to promote moral and religious traditions.

What compensates for this pressure on liberty is the struggle in the lives of ancient humans, which has two main aspects. First the struggle with nature to have enough food and shelter to preserve life. Second the military struggle with rival states and communities, which was a very frequent experience in antiquity, and was an aspect of the history of the early Greek and Roman republics.

The best place to look for that in antique sources is Homer, because of the breadth of the Homeric world, as well as its poetic qualities, as well as its enormous influence on Greek and Roman culture. I had meant to address how the kind of struggle which can promote some kinds of liberty does appear in Homer, but this post is already long enough, and the best thing is to address Homer directly in the next post.

In the meantime, careful reading of any of the translations in books and post on websites, of The Iliad and The Odyssey (or indeed the original Greek for those fortunate enough to have that linguistic capacity), should I hope provide material to confirm what I’m suggesting.

Which MPOs are most efficient?

I have been working on a project to measure the efficiency of Metropolitan Planning Organizations (MPOs). MPOs are one of the levels of government often forgotten. When we think of government we usually think of federal, state and local government. MPOs lay between local and state government. My local MPO for example, the Southern California Association of Governments (SCAG) for example covers all of the southern Californian counties except for San Diego. Other MPOs, such as the Delaware Valley Region Planning Commission, cross over several states. Nominally MPOs are concerned with setting transportation policy, but in effect they have broad powers over many areas of regional economic development.

Most MPOs have no elected leadership and instead either appoint their own heads or draw from their constituent members. By no means am I a little ‘d’ democrat; I do not see much value in democracy to decide public policy. It is however concerning that these form of government have little oversight over them of any sort. My hope is that my work will provide much needed information on how well (or badly) these MPOs are doing their jobs.

I am attempt to rank MPOs on two basis: transportation services and air quality. Below is a ranking of the top 77 largest metro regions by their adjusted cost efficiency for providing transit services. I used metropolitan level data from 1991 to 2011 to construct these figures. By adjusted I mean that I attempted to take into account for factors that affect their cost efficiency, namely level of federal funding which is negatively associated with cost efficiency. I hope to be able to better calculate these figures in the future taking into account spatial factors that affect efficiency, but I have to start somewhere right?

1. Raleigh
2. Virginia Beach
3. Honolulu
4. El Paso
5. Orlando
6. Wichita
7. Memphis
8. Baton Rogue
9. Cincinnati
10. Indianapolis


70. Bridgeport
71. Akron
72. Seattle
73. Albuquerque
74. Knoxville
75. Worcester
75. Dallas
76. San Jose
77. McAllen

The full ranking can be found here: Efficiency Residual.


Liberty and Homer

The ‘Expanding the Liberty Canon’ label is not adequate for some texts that ought to be discussed with regard to liberty, since they have something important to say about liberty, but even on an expanded inclusive definition cannot be said to put forward a case for liberty, certainly  not from the perspectives of classical liberalism, libertarianism, the liberty movement, or any other label for thinking which favours liberty understood as individual rights, markets, voluntary association, and rule of law over communalism, collectively directed distribution, state domination of society, and administrative rules.

I have plenty of further texts to discuss under the ‘Expanding the Liberty Canon’ heading, but here is a beginning to the ‘Liberty and…’ sequence. It is an appropriate starting point in that the epic poems associated with the name of Homer, The Iliad and The Odyssey are at the very beginning of European literature, culture, and knowledge. This is not say that there is pure beginning to Europe’s cultural and intellectual heritage with no precursors and no outside influence. It is to say that these are the first big texts in the history of anything that can be labelled European history. The name ‘Homer’ conceals considerable uncertainty about whether these poems have a single author and if so who.  What can be safely said is that these are long poems written down in approximately 800 BCE, drawing on a long oral tradition of sung poetry, referring to a world of Mycenaean late Bronze Age Greeks, who traded with and fought with the peoples of Anatolia, in a civilisation that disappears from the archaeological record in about 1 100 BCE.

On the side of Homer not being a hero of liberty is the apparent endorsement of a world where war and piracy have greater respect than trade and manufacture, the greatest role for a man is to defeat enemy armies and sack their cities, women’s role is to stay at home, do a lot of weaving, and obey their husband. Political authority is patriarchal-monarchical, based on the claim that kings are warrior-hero aristocrats are close to the gods. Ordinary people are deprived of choices and influence, subordinated to the hero-aristocrat class and may even be slaves. In The Iliad, a league of Greek kings lays siege to Troy for ten years, purely for reasons of honour connected with a Trojan Prince taking a Greek queen from her husband back to Troy. The violent destruction on enemy cities, the enslavement and murder of civilians, the organised theft of property are all part of the value system of Greeks and Trojans. In The Odyssey after various adventures on the way back from Troy, Odysseus massacres a group of aristocrats who have been trying to marry his wife during the twenty years of his absence, living in his palace using up the wealth, and follows this up with a massacre of those servant women who were too friendly with the massacred men.

So where does liberty come into this world of violence and traditionalist authority? One part of the answer to this question is that maybe the Homeric epics are critical of this world, at least in some part. The exploration of where there might be a critical distance in the Homeric poetry from the most disturbing aspects of the world it depicts gets into much detailed and questions of ambiguity to pursue here, but is something to bear in mind when reading Homer. Leaving that aside, there is the underlying issue of the formation of a world of poetic creation, which in some degree must be distant from and reflect on a world, so raising the possibility of individual critical perspectives.

Anyway, even staying at the level of the more direct and literal meaning, it portrays different possibilities of individual character and ways of being. In The Iliad we are see Achilles the proud angry warrior who lives to become the hero of song, even if that means dying young. His devotion to violence co-exists with a belief that he has rights as an individual against his overlord, a passionate devotion to his best friend, a capacity to overcome his angry nature when he allows the father of the Trojan hero, Hector, who killed his friend to take the body for honourable burial.

Hector himself has a near Achilles level of ‘heroic’ violence combined with a deep and self-effacing attachment to his wife and child. Many other possibilities of human individuality are explored including that of the most intelligent and cunning of the Greek leaders, Odysseus, who understands that war is won by stratagems as well as devotion to violence. This man of reflection, forethought and an early form of the life of the mind, becomes the centre of the second Homeric epic, The Odyssey, which recounts the ten years of his journey back from Troy to his homeland of Ithaca.

Odysseus starts back with his own fleet of ships carrying an army of Ithaca, by the time he gets back to Ithaca all of this is lost, and he is alone, in disguise playing the part of a vagabond when he arrives on his home island. Early in his adventures he described himself as No-man to trick his way out of danger from the giant Polyphemus and then proudly shouts his real name at the giant on his escape. This is at the base of his ten year journey since the god Poseidon is the father of  Polyphemus and takes revenge on Odysseus when Polyphemus can tell his father how Odysseus harmed him. Again and again Odysseus has to struggle with his own impulses and with the need to play a part, stretching his identity, in order to return to his island kingdom. So he is growing as an individual, exploring all the possibilities of individuality, including self-concealment, self-invention, and self-transformation.

The extreme violence of the return of Odysseus is followed by the brief description of a new beginning in Ithaca, an order of social peace in which a possible cycle of revenge is pre-empted through oaths and the prospect of justice settling differences rather than violence. This reconciling ending of The Odyssey itself builds on the sombre peace at the end of The Iliad, when a truce is agreed so that the city of Troy can bury and mourn its hero Hector, so that the values of peace and acknowledgement of individual suffering can stand up against the cycle of destructive violence.

In these and many other ways, Homeric epic offers much to stimulate thought about the nature of individuality and the kinds of social form which might allow individuals to flourish together, even in its depiction of the most destructive outcomes of human passions.

What is social justice?

Since only individuals act, only individual actions can be judged.  Groups, governments, corporations, etc. are not acting entities and therefore cannot be judged.  The individuals who act under the aegis of such groups can, of course, be judged.  So what could social justice possibly mean?

Along comes the redoubtable Wendy McElroy with an answer.  It is “forced distribution of ‘privileges’ across society with an emphasis on providing wealth and opportunity to classes of people who are considered to be disadvantaged.”  It matters not whether a particular set of circumstances is the result of voluntary interactions.  Individuals who are female, have dark skin, low income, etc. qualify automatically as victims.  Examples of redress include affirmative action and progressive taxation.

Enough from me.  Please go read Wendy’s post.

What’s wrong with migrating?

This is a response to Irfan Khawaja over at the Policy of Truth blog.

I am of Jewish descent. I am not a JewI was baptized a Catholic as a baby and have no plan to convert in the foreseeable future. I am nonetheless of Jewish descent. My paternal grandfather is a rabbi and my cousins from that side of the family are Jews.

My family patriarch migrated from Germany to Mexico during the turn of the 20th century. He migrated long before the Holocaust, but I wouldn’t be surprised if he was motivated to migrate to escape prosecution in Europe.

I also have slaves in my family tree. My great grand mother (Or was it great great? I forget.) was a black Cuban and my parents thought I might be born with dark skin. Blacks, for those who are keeping score at home, are not native to Cuba. Slavery in Cuba did not end till 1886. My great grandmother migrated to Mexico to escape prosecution in Cuba.

I myself migrated to the United States at the age of two. I might have been born in Mexico, but I was a libertario at birth. I loved Mexican food but that was not sufficient reason to stay in a country with such a poor conception of personal liberty. So I kissed my mother good bye, packed my bags, and crossed the border. I ended up settling down in Los Angeles, where I could have Mexican food and liberty.

What I am getting at here is that there is nothing wrong with migrating.

Had I stayed in Mexico I would likely be dead now. If a cartel member asked me to pay protection tax I would have refused and instead given him a speech on why we should legalize drugs. My town of birth, Morelia, is one of the capitals of the drug trade so you can imagine how long I would have lasted.

Had my great grandmother stayed in Cuba she would have to live with left over discrimination against slaves and their descendants. Worse still her descendants would be living in Castro’s Cuba!

My family patriarch might have survived the Holocaust if he had stayed in Europe. Or he might have been baked.

I agree with Irfan Khawaja that one should be assured of their personal safety and liberty regardless of any incidents of birth. I also agree with him that Benjamin Netanyahu, current Israeli Prime Minister, is wrong to urge European Jews to migrate to Israel. Israel is hardly a safer country for Jews than Europe.

Where I disagree is that I see nothing with migrating or urging others to migrate in pursuit of safety or liberty. There are times when one should hold strong and defend themselves. There are also times when one should realize that your neighbors are bigots and they won’t stop being bigots during your lifetime. If you can improve your quality of life by migrating, why not do so?

For any European Jews who might be reading this: forget about Israel and come to the United States! Specifically come over to my hometown, the San Fernando Valley.  The San Fernando Valley is a lovely community within Los Angeles. The original Karate Kid series, and countless other films, take place in the Valley. The film industry is actually located in the Valley, not Los Angeles itself. Best of all, the valley is filled with Jews. My undergraduate university, Cal State Northridge, has one of the largest concentration of Jews in America. Did I mention that there is plenty of Mexican food to go around?

I’ll be honest, there are some drawbacks to the valley. We are ruled over by the incompetent authorities in Los Angeles city hall and attempts to form our own city have been thwarted over the years. Real estate prices are also high. Despite this though I love the valley and welcome others to migrate there if their current home is undesirable.

Should the Italian PM support the Democrats?

I don’t care for the Israeli government. Don’t get me wrong – I don’t care for Palestine government either. I have a particular distaste for Israeli politics in my heart though.

Israel has some points to its favor; it is one of the few countries in the near east with a relatively liberal domestic policy towards its citizens. Its economic freedom is also relatively high. The country gets bonus points for its law of return which has granted an easy pathway to citizenship.

The country is far from perfect though. Its liberal domestic policy does not extend to its non-citizens. Defenders of Israels are correct to point out that Arabs are free to become citizens, but it cannot be overlooked that a considerable number of resident Arabs/Palestinians are non-citizens. Nor can it be overlooked that its military and religious institutions play a strong role in civic life.

Israel is by most accounts a ‘middle’ country. It has liberal market-based institutions, but it still has plenty of areas for reform. Non-citizens must be recognized to have the same human rights as citizens. Military conscription must be ended. The state must cut ties with religious figures and be truly secular.

One of my biggest concerns over Israel though is that it continually attempts to treat American Jews as de facto Israeli citizens. I was reminded of this while reading the Washington Post and seeing that one of its articles was about the Israeli prime minister favoring the Republican Party. The author seems to believe that the Israeli PM should support the Democrats, whom American Jews overwhelming support.

This is of course silly. Should the Italian PM support the Democrats? American Catholics are Democrats after all. The Italian PM however acts in the interests of his state, not Catholics. Roman Catholics may have a special connection to the Vatican and Italy, but this connection is religious not civic. Alternatively, does Saudi Arabia have any reason to support Muslims in American politics? Again no – the Saudi King is a temporal power not a religious one.

Israel contains several religious sites of importance to Jews, Christians, and Muslims but that’s it. The Israeli government has no mandate from heaven to rule over the world’s Jews. It is unclear as such why the interests of American Jews or the Israeli should be treated as interchangeable. American Jews may be Jews, but they are foremost Americans. Likewise American Catholics or American Muslims are Americans first.

The United States is a country that thrives on diversity and tolerance. One can be a Mormon, Muslim, or Atheist and still be an American. One can style themselves a “Russian-American” and still be an American. The United States however needs a unifying force for this system to work. Some believe that this unifying force should be a common language or religion, but I disagree.  Liberty, not the English language or Christianity, is what defines an American. 

I urge as such for American Jews to reject any temptation to consider themselves de facto Israeli citizens. American Jews owe no fealty to the Israeli government and it in turn owes American Jews no fealty. If one wishes to be an Israeli by all means migrate there. Similarly if there is anyone out there who wishes to become an American I more than welcome you to come. Open borders and all that jazz.

Wrestling with the Non-Aggression Principle

There is a story, likely apocryphal, concerning the great rabbi Hillel. When Hillel was learning in his academy, a gentile came to him and demanded that he teach him the entirety of the Torah. To make things harder, he would have to do this while the gentile was standing on one foot. If Hillel could achieve this feat, the gentile would convert to Judaism. Hillel was unfazed: “Don’t do unto others what you would not have done unto you.” The simplicity of the principle is attractive, and its validity is easily defensible. For example, I don’t want my employer to withhold my salary from me, so if I find myself in the role of a boss, I will not keep my employees from their rightful salaries.

However, it omits much of the Torah. Many of the commandments are not just “thou shalt not…” but also “thou shalt”: honor thy mother and thy father, remember the Sabbath day and keep it holy, stone your son if he is unruly, and so on and so forth. They are positive rather than negative commandments, enjoining action rather than prohibiting it. Furthermore, as a principle it elides many of the positive duties that are necessary to the functioning of a civilized polity. For example, if I were drowning in a swimming pool, I would not want the lifeguard to come to the edge of the pool, look at me floundering, and laugh. Thus I too would not laugh at a drowning person. But if I am drowning, I don’t want the lifeguard to just refrain from laughing at me. I also want him to pull my sorry ass out of the water.

This thought experiment can be reconfigured. I can say that, if I were drowning in a swimming pool, I would not want the lifeguard to not pull me out of the water. If I were put in the role of the lifeguard, I would then not not pull the drowning person out of the water. Seems okay, right? It works grammatically, but examine the drastic difference in nature between the two actions. To not laugh is to refrain from doing something, laughing. To not render assistance is to not do whatever steps are necessary to give aid, and so consists of doing precisely nothing. At best, because human beings can never not be doing something merely by virtue of being alive, it consists in just standing around. Because negating nothing also results in nothing, then to not not render assistance implies absolutely nothing. If I am being charitable and declare that to not render assistance means standing around, then to not not do this would mean to not stand around. But that is not descriptive of anything – the lifeguard could very well order a pizza instead. Thus we come to the central problem: that the lifeguard and I should refrain from laughter does not imply that we should also offer assistance, i.e. a positive action cannot be derived from a negative prohibition.

That this principle cannot account for all the actions required of a moral agent is damning to Hillel’s account of Judaism, but not to Judaism as a whole. After all, we have the moral axiom “do unto others, as you would have done unto you” as well. Returning to the example of the drowning swimmer, if I were he, then I would want the lifeguard to save me. That is, I would not want the lifeguard to just refrain from harming me, but to actively help me too. If I found myself in the role of lifeguard, then I would remember this reflection, and save the life of a drowning person. I demand a positive action from someone in the role of lifeguard, and so I render the same positive action when I am put into the same role. We thus have an equilibrium, where negative rights to life and positive duties to protect life are both upheld.

Although Hillel’s “silver rule” is a good principle to adhere to, it cannot be foundational, because it cannot do all the work that a complete moral system is required to do. As I thought about this example, my mind then roved on to something different, but related: the Non-Aggression Principle, or NAP, that is considered foundational for (at least legal) ethics in the Rothbardian strand of libertarian thought. The simplest formulation of this principle is that aggression should never be initiated against another human being or his property and livelihood, except to prevent force or fraud, or in self-defense. Professor Matt Zwolinski defines it as a principle which

“holds that aggression against the person or property of others is always wrong, where aggression is defined narrowly in terms of the use or threat of physical violence.”

A competing definition from The Ludwig von Mises Institute defines it as:

“an ethical stance which asserts that “aggression” is inherently illegitimate. “Aggression” is defined as the “initiation” of physical force against persons or property, the threat of such, or fraud upon persons or their property”

There is, of course, a clear difference between physical force and physical violence, though some verbal gymnastics may be necessary to tease out the boundaries. Throughout his article I will be using Zwolinski’s definition, though I may take up the latter at some later time.

The justification for extending the NAP from persons to their property is derived from the analogy of self-ownership: if I own my self, then I also own those things that my self produces by extension. It also comes from John Locke’s homesteading principle, viz. “mixing of labor with an unowned resource makes that resource part of one’s self. Subsequent exchange of such property (e.g. sale, rental) simply transfers this right. Hence, to aggress against someone’s property is to aggress against the individual. As for freedom of contract, the right of self-ownership is held to imply freedom of action in the absence of aggression (e.g. in the absence of false or duress contracts, and the absence of contracts stipulating aggression against third-parties).”

Finally, if the NAP is granted to apply to both persons and their property, “then the non-aggression principle is held by its supporters to lead to the rejection of theft, vandalism, assault, fraud, pollution and the concept of victimless crimes.”

There is a lot to disagree with here. I could, for example, take issue with the very concept of the “self” and the “I” which owns it, but as Kant rightly stated, freedom is a necessary postulate for morality, and so even if it cannot be explained, it must be maintained. Such an enquiry is fundamentally necessary to determine whether such a “self” could own anything, after all. Furthermore, I could certainly disagree with the extension of ownership of the self to ownership of things with which that the self interacts. And so on and so forth. Instead of these objections, I have a simpler mission with this post. I want to start an enquiry into the suitability of the NAP as a legal/ethical, as well as a generally moral, principle. Thus I will ask two questions:

  1. Is the NAP a suitable foundational principle for ethics?
  2. Is the NAP a suitable foundational principle for the law?

The NAP as a Moral Principle

Because the NAP considers aggression to be ceteris paribus illegitimate, it has the force of an unequivocal moral law. If I covet my neighbor’s cow and I steal her, that is aggression against him, and thus wrong. If I want to institute a tax to pay for a town library, that is theft of my neighbor’s funds, a form of aggression, and therefore illegitimate. If I want to protest the new Walmart in the neighborhood by defacing the storefront with a lewd graffito, that is damaging the property of the shareholders of Walmart, and thus wrong. However, if a man pulls a knife on you in a dark alleyway, you are justified to pull a gun on him, in protection of your life and your property. If a sharper tries to extort money from you in a Ponzi scheme, you are justified to bring down the police on his head, in protection of your property against fraud. I can continue to come up with examples, but the point should be clear: any initiation of aggression is illegitimate, unless it is in response to an act of aggression initiated first by someone else, whether through force or fraud.

This is a very simple, intuitive, and easy-to-remember moral axiom. Because of this, it is overly broad, and thus overly thin. It cannot account for all the moral intuitions people have, and at times is radically opposed to a commonplace sense of right. While these reasons are not sufficient to dismiss it entirely, they are enough to question its suitability as a foundational principle of general morality for libertarianism. The NAP, by focusing only on the negative duty to avoid harm, ignores a whole swath of other important moral considerations: whether the costs of an action are commensurate with its reward; duties to help or to not harm; the roles involved with or implied by duties; and the nature of the human being, whether such a nature implies positive, or merely negative, duties.

The benefit of the NAP is that it prohibits doing all action that is clearly, intuitively, wrong. Murder, rape, and theft are always wrong, regardless of whatever gains may accrue from them. While any right thinking person will grant the truth of this, these same people may not notice that all these cases are acts of “doing” – that is, acts that a single moral agent, out of his own free will, elects to do. However, many moral dilemmas do not depend on what an agent actually does, but more importantly, what he allows to happen. This is where the ethical principle of doing and allowing comes in. There are some actions that on principle a moral agent cannot do, but that he may be allowed to let happen. For example, a moral agent cannot run over a person stranded in the road to save another person stranded atop an active volcano, but that same agent can allow one person to drown in order to save five other drowning people.

I will use a thought experiment to illustrate this (which I stole from some obscure paper on moral philosophy I read in undergrad). You have an elderly neighbor named Janet. Over several years, an arrangement developed between you and Janet that, during wintertime, you would gather firewood and stoke her wood-burning stove, the only source of heat in her home. You never established a formal contract with Janet, nor have you ever spoken about it, but there is a tacit understanding between both of you; you saw a need, and you provided. It is wintertime, and you receive a call that your best friend was hit by a car and is dying in a hospital three hundred miles away. You have the option of staying to help Janet, or going to see your friend before he/she dies. There is no one to help Janet except you. If you leave, Janet will likely die from the cold. What should you do?

Under NAP, there is no direction as to which option to choose. There are no legal, economic, or contractual obligations either to Janet, or to your friend. Not aiding Janet is not the positive action of initiating force, and so it is not prohibited by NAP. Not going to see your friend is also not an initiation of force, and so is equally permissible. What you do in this instance is entirely dependent on what would be, under the NAP, non-moral considerations:

  1. Janet requires your help, but Janet does not hold your affection in a way that is more than benignly charitable
  2. Your friend does not require your help, but does hold your affection in a very deep way.
  3. Seeing your friend before he/she dies is important to you, as it will be the last time you will ever see him/her

There is no such thing as a moral duty to help embedded in the NAP, and so your only recourse is your own sense of right and wrong, and your own motivations. If your sense of right and wrong is based on NAP, there is nothing wrong with not helping Janet, and because your attachment to your friend is stronger, you will leave to see him/her and allow Janet to die from the cold. If your sense of right and wrong incorporates the NAP, but also other moral ideas such as positive duties, you will likely stay to help Janet stoke her fire.

The main problem with NAP is that it is entirely negative: it prevents harm by making all actions subject to the prohibition on initiatory force. However, in doing so it neglects the necessity of positive duties. Here, by not helping Janet stoke her fireplace, you are not actively initiating force against her. Really, you are doing nothing at all. You are not breaking a formal arrangement ratified by mutual oaths or by contract, and thus infringing on her rights to the labor you are contracted to provide. Tacit agreements are not substantial enough to constitute a violation of NAP, as that would make any sort of casual arrangement equivalent with an initiation of force. If I have an arrangement to play a pick up soccer game with my friends every week, and one week I decide to play chess with grandpa and neglect to inform them, I can certainly be called inconsiderate, but it would be patently absurd to say that my lack of consideration is the same as initiating force, or participating in fraud. My friends do not have a legal or moral right to my presence at the game, as they might if I were a professional player contracted with a team. My labor is not part of any binding agreement, it remains mine, and so I may dispense with it as I see fit. If this is true at a trivial level for tacit arrangements, on principle it is true at a more substantial level, when there are real consequences: if violating my tacit agreement with my friends is not an initiation of force, neither is violating your tacit agreement with Janet.

However, by failing to gather wood, place it in her stove, kindle and maintain it, and make sure she is warm, you are not killing her yourself, but you are allowing her to die through your negligence. By taking on the task of tending the fire, and making Janet dependent on your labor for her survival, you have tied her fate to your willingness to assist her. You have taken on a positive duty to help her, by virtue of her helplessness and your absolute power over her life or death. Acting as if NAP is foundational precludes moral duties, but this also means it precludes the roles that presuppose all duties. A fireman has a duty to put out fires because he is in that role, and a priest has a duty to shepherd his flock by virtue of his role. In this case, you are not in the role of a caregiver, and so she does not exert an economic or contractual claim on your exercise of labor. However, you are in the role of a neighbor or a friend, and while she has no economic claim on you, she certainly has a moral one. In the same way that a child, by its very helplessness, exerts a moral claim on its parents, Janet exerts a moral claim on you or anyone that is integral for her survival.

The NAP as a Legal Principle

Some libertarians may cry out at this point that the NAP was never intended as a general principle of morality, but more narrowly, as the basis of legal ethics. This is the stance of Rothbard and Hoppe, and while it may get them out of this last dilemma I conjured up, it also may not. You have no legal obligation to help Janet, and so you could not be prosecuted for leaving her (literally) out in the cold under a legal system founded on NAP, but you certainly would be morally stained. The presumption is that legal coercion is not required, for even if the law did not constrain you to act in the right way, your own personal concerns would: your private morality (guilt), or the views and sanction of the community (shame).

This presumption takes an overly rosy view of human nature. At times coercion is necessary to forestall a greater harm by the imposition of a smaller one. If I am drowning, it is a reasonable expectation that those around me will save me, and most moral people would. But I cannot count on other people being moral, so there must be the added threat that, if they do not save me, they will be punished in some way. As Zwolinski writes, “taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind.”

I will look at some thought experiments to further elucidate the stupidity of using the NAP as a foundational principle of the law.

1. The judge and the mob

A judge is adjudicating a particularly contentious murder trial. In the course of the proceedings, he receives irrefutable evidence that the defendant is innocent, and so he moves to dismiss the case. A mob forms outside the courthouse and kidnaps five innocent people, threatening to murder all of them if the judge does not hand over the defendant. What should he do?

Analyzing this in terms of the NAP, the judge may or may not have grounds to give up the defendant in the case. On one hand, to give him up would be to condemn him to death, a clear instance of initiating aggression, and thus illegitimate. On the other, merely allowing him to be killed is not in itself a clear case of physical aggression. Indeed, the judge may only have to open the courthouse door and let the mob do the rest. In what way is opening a door a clear case of aggression? Zwolinski writes on this as well:

“The NAP clearly implies that it’s wrong for me to shoot you in the head. But, to borrow an example from David Friedman, 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? Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway (what if we suffer a heart attack, or become distracted), or when we fly airplanes over populated areas. Most of us think that some of these risks are justifiable, while others are not, and that the difference between them has something to do with the size and likelihood of the risked harm, the importance of the risky activity, and the availability and cost of less risky activities. But considerations like this carry zero weight in the NAP’s absolute prohibition on aggression. That principle seems compatible with only two possible rules: either all risks are permissible (because they are not really aggression until they actually result in a harm), or none are (because they are). And neither of these seems sensible.”

It should be clear that we are dealing with the first rule here, viz. “all risks are permissible (because they are not really aggression until they actually result in a harm),” which as he notes, is not a sensible rule to have.

The five victims do not deserve to die, certainly, but that is out of the judge’s hands. He cannot ensure their safety except through the violation of the defendant’s right to life, assuming such a right exists. And, he does not know if the mob will make good on their promise. Perhaps they will lynch the defendant and kill the other five innocents. Perhaps if he calls their bluff and keeps the defendant, they will not kill the innocents at all. Perhaps Jesus will come down and the Resurrection will occur. If he is a gambler, the judge will clearly see where the odds lie, as the only thing really up to him is what he does with the defendant – every other outcome is out of his direct control.

Sacrificing one to save five is a superior choice in terms of the immediate material consequences. Five human lives will be spared at the cost of one. To refrain from handing over the defendant would be equivalent to condemning five people to death, and so the judge ought to deliver him to the mob, in order to save more lives. However, it is also clear that acquiescing to the mob involves a lot more than six civilians and a judge. Showing the mob that it can buy the decisions of the judiciary through coercion is corrosive to the very idea of justice, which is based on the impartial weighing of evidence and not the clamor of the crowd. Valuing human life on a material scale is corrosive to the idea of the inherent dignity and non-instrumental value of a human being, which is the underlying basis of any justifiable ethics. Finally, giving up a man to the mob is the same as intentionally murdering him, while allowing the mob to kill five people is a decision that is out of the judge’s hands, and entirely up to the mob which controls the situation. To legitimize such a sacrifice is to legitimize the act of murder when it is demanded by a majority, perhaps the most corrosive idea of all. If violating the right to life and liberty for a case of one versus five is wrong, it is equally wrong if it is one versus one, or one versus one million.

2. The NAP is not consistent.

You may notice in the definition of the NAP that “fraud against persons or property” seems tacked on to the prohibition of initiation of physical aggression against persons and their property. The underlying logic is that physical aggression is morally equivalent with fraud, which is also some form of aggression. It is more of an equivocation, though, as the physical aggression prohibited under NAP cannot be equivalent with fraud. Physical aggression, such as striking another person, is fundamentally different literally and conceptually from telling some gullible schmuck that the ring I am selling is genuine gold, when in reality it is brass plated with some low quality gold alloy. If you believe in the principle of self-ownership, and thus ownership of the possessions of the self, then you may say that, yes! I am aggressing against the schmuck by harming his personal property. But even so, the aggression against property versus against a man are fundamentally different, because they are fundamentally different things, connected only by a tenuous abstraction. It is this abstraction that allows the ringbearer to initiate force against me, in order to reclaim his lost assets taken through fraud, just as it permits another man to defend himself after being struck. However, notice the difference: the first case is an initiation of physical violence, because fraud is not violence, while the second case is retaliation against violence initiated previously.

Prohibiting harm of a person’s property is certainly important, but it is not equivalent with harm to the person himself, and it is patently absurd to argue that these two situations are symmetrical. The legitimation of physical violence because of fraud against a man’s property also holds for the NAP in any case of aggression against property. Zwolinski again:

“Suppose A is walking across an empty field, when B jumps out of the bushes and clubs A on the head. It certainly looks like B is aggressing against A in this case. But on the libertarian view, whether this is so depends entirely on the relevant property rights – specifically, who owns the field. If it’s B’s field, and A was crossing it without B’s consent, then A was the one who was actually aggressing against B.”

This leads to the ultimate reductio: violence is not the fundamental concern of the NAP, for violence against persons may or may not be legitimate depending on the circumstances of who and whom. But, violence against property is always illegitimate, because property, unlike the man, is always an unalloyed good. Thus, the NAP places the protection of property above the protection of a man himself, a heinous conflation of moral and legal goods with mere material concerns. The marvellous Kant would be rolling in his grave if he saw such foolishness accepted as gospel. As Zwolinski says, “…the NAP’s focus on “aggression” and “violence” is at best superfluous, and at worst misleading. It is the enforcement of property rights, not the prohibition of aggression, that is fundamental to libertarianism.”


Even given these problems, I do not think the NAP should be abandoned entirely, as does Zwolinski. It may be broad, and incoherent, but those problems are obviated by:

  1. Denying its status as foundational for either morality or law
  2. Denying the idiotic assertion that fraud merits physical violence
  3. Affirming other moral and legal guidelines that are superior to and/or complement it.

The idea that it serves as an absolute moral principle is misguided, and it should be replaced with the idea that it is a guideline for action, not a foundation for it. Further, its use as a foundational principle for the law is also absurd, and must be accompanied by more, and better, principles to create a comprehensive body of law. The Aristotelian virtues come to mind here. Courage is the virtue of battle, but courage alone does not make a good warrior. The prudence to know when to be courageous, when to storm the barricades and when to retreat, is more valuable. For courage, when puffed up by the vehemence of war, becomes rashness, and when dampened by fear, becomes cowardice. There is a mean between them, and it is the true virtue of the good warrior that he knows where this mean lies.

For morality, instead of throwing the baby out with the bathwater, we must affirm the usefulness of the NAP, while complementing it with other principles that satisfactorily map onto our moral intuitions and maintain our moral principles. Instead of a single, overriding absolutist principle, we ought to have a constellation of principles that inform our moral behavior. For the law, a codified respect of both negative and positive rights and duties is necessary. I welcome any comments and criticism.