Deontology and consequentialism, again

Christopher Freiman, associate professor in philosophy at William and Mary and writer at Bleeding Heart Libertarians, identifies as both a libertarian and utilitarian. Since my first real introduction to libertarianism was Harvard theorist Robert Nozick, I originally envisioned the philosophy as a rights-based, and thereby in some sense deontological, political theory, with like-minded economists and political scientists arguing for its merits in terms of material conditions (its consequences). In university philosophy courses, “libertarianism” means self-ownership and property rights, often through Nozick’s analytic approach. Consequentialism looked more like a top-down approach on how to live, one that doesn’t necessarily suggest any political theory, or does so only ambiguously.

In living by a deontological ethics, considerations about the consequences of an action will almost inevitably come into play, especially when pressed with more extraordinary cases. (Brandon has pointed out their ostensible — I think it only that — compatibility.) The right of an individual to not be violently attacked, for example, seems trumped in the face of the alternative immediate destruction of every other human being. I don’t think this is a great method for deducing practical principles, however. Although considering extreme cases might be entertaining and enlightening as to the durability of a thesis, their pragmatic import is typically negligible.

However, in considering their philosophical compatibility, libertarianism and utilitarianism feel at odds, and not over extreme counterexamples. Let’s look at a few low-hanging fruits. Suppose the National Security Agency had advanced knowledge that someone was planning to attack a nightclub in Orlando a few weeks prior to June 12, 2016. Private security would have increased, several clubs would have shut down. Were the threat classified as serious enough, state government might debate the Constitutionality of entering peoples’ homes and forcefully taking firearms; they might do this and succeed. Any further firearm sales would also be prohibited. This is an awful lot of state power and intrusion. However, fifty lives are plausibly saved, including Omar Mateen, and the lives of their family and friends are not devastated. Using a hedonistic calculus, these efforts look justified. Now, ignoring the NSA’s incompetency, suppose that our security agencies predicted the hijackings several months before September 11, about sixteen years ago to this day. In a utilitarian model, would the choice to prevent any civilian boarding for so many days, in order to prevent tragedy, be the correct one? In essence, is the partial nuisance to a substantial number of people overridden by the imperative to save 2,996 lives? Certainly — through utilitarianism — yes: the government ought to intervene and shut down air travel. In fact, the state determined it had a compelling interest immediately after the attacks and did this very thing, balancing national security over civil liberties.

Utilitarianism and liberal positions also challenge each other aggressively on issues like gun rights. In theory, were it possible to completely remove firearms from the states, there would be a gain in utility for the lives saved that would otherwise be lost to gun violence accidental or otherwise. Many people suffering nuisance (e.g. loss of pleasure from visiting the shooting range and insecurity about home invasion) is less consequential than the saving of lives.

And what of abortion? I align with reproductive rights, like plenty but not nearly all libertarians. Is choice, here, compatible with utilitarianism? All the additional children, bringing their own default happiness (cf. David Benatar for a counterargument), might be a utility bomb large enough to warrant invasive pro-life measures under utilitarianism, regardless of first, second or third trimester.

There are surely historical arguments that protest awarding the consequentialist victory so easily to the side of authoritarianism. For example, a nation equipped with the administrative power to invade private citizens’ homes and families, or cancel intranational travel or immigration, is probably not the nation which, in the long run, leads to the most utility or happiness. Nationhood aside, if all firearms were removed from society, this too might not be that which leads to the greatest net utility: maybe home invasion becomes epidemic; maybe rural areas that capitalize on hunting fall into unforeseen economic concerns; maybe the sheer quantity of the nuisance outweighs the beneficial effect of confiscation. The consequences of most of these issues are empirical and fall to historical argument. However, at least to me, utilitarianism seems incompatible with a variety of rights-based libertarian commitments, and thus deontological considerations become essential.

Here is another challenge to utilitarianism in general, and particularly Bentham’s project of a utilitarian legal system: discovering utils, or quantifying how much utility is connected to any action, is difficult. (And, since it has been, in all instantations, attached to government policy — not cooperation among peoples — it suffers from planning concerns on an even more detrimental scale.) The calculation is even more challenging when considering “short” versus “long term” effects. In the cases of Patriot Act-style defense, gun control (were it possible), and abortion, large-scale government intervention is, prima facie, justified by utilitarianism; yet over time, it may become evident that these choices result in overall poorer consequences. How much time do we wait to decide if it was the utilitarian decision? — And in the episodes of history, did any of those scenarios play out long enough to give a definitive “long term” case study? Swapping classical for “rule ulitarianism” doesn’t remove this epistemic barrier. There isn’t a non-arbitrary rule that determines how many moments into the future one must wait before judging the utility-consequence of any action, for those actions where we cannot pinpoint the closed-system end of the casual chain. Another related concern is that utilitarian judgments take on society as a whole, with little room for specific circumstances and idiosyncracies. This is why it strikes me as viciously top-down.

Thus the two philosophies, one etho-political and one entirely ethical, appear to conflict on several important considerations. (Most of the principles of the Libertarian Party, to name one platform, are not utilitarian.) Lengthy historical arguments become necessary to challenge the compelling nature of particular hypotheticals. J. S. Mill, whose utilitarian work inspired much of the classical liberal tradition, was, at the end of the day, a consequentialist; however, his harm principle from On Liberty is definitively rights-based, and this principle is at the core of his libertarian import, along with his anti-paternalism as espoused by people like Freiman. Freiman acknowledges some of the criticisms of utilitarianism, being (I think) a Millian and a libertarian, including one of its most prominent objections from those concerned with individual liberty: the separateness of persons, as offered from critics like Rawls. His response to this problem is essentially the one that falls to historical argument: “While it is possible for utilitarianism to recommend organ harvesting, hospitals that expropriate organs would not contribute to a happy and peaceful society in the real world.” This empirical conjecture leaves the realm of philosophy for us.

The inconsistencies promulgated by Mill — from his political philosophy, namely in On Liberty (1859), and his ethical philosophy, namely in Utilitarianism (1863) — may be why both consequentialist and deontologist libertarians can find support in his writings. Combinations like these are no doubt why Brandon finds the two compatible.

I don’t find them compatible, though utilitarianism as it was understood before Rawls may be the worse of the two (although rhetorically more effective). The modern father of deontology, Immanuel Kant, rejected the consequentialist ethos in his call to “treat people as ends, not means.” Utilitarianism, as broadly understood, has every reason to produce an omnipotent authority figure that will approve any gamut of regulatory and coercive policies if it seems to benefit the greatest interest of the majority. The “seems to” part is the only part that matters, since plans have to be acted on the basis of best knowledge; and I would maintain that estimating utils is never certain, being an empirical question made especially blurry by historical confusion. Brandon gave the example of the Great Leap Forward as an instance where we see utmost disregard for human sanctity in the sake of majoritarian or nationalist or “best interest” considerations.

Yet Kant can be interpretated as no less controlling. Deontology, from deos “duty,” is the study of what is morally permissible or obligatory, and to this natural rights is just one possible derivative. He is taken to be a natural rights theorist, and there is a separateness of persons explicit in his ethics absent from Bentham and Mills’ greatest happiness principle. But although Kant’s metaphysics of morals has persons, and not majorities, his Protestant upbringing shines through in his conservative views on sexuality and otherwise non-political behavior.

In a comment on Freiman’s post, Matt Zwolinksi objects to his assertion that utilitarianism is opposed to the interference of government in private, consenting interactions between adults (for some of the reasons mentioned above, and I agree). Zwolinski says, on the other hand, that Kant was strongly anti-paternalist. I doubt this. Immanuel Kant wrote criticisms of casual sex — each party is self-interested, and not concerned about the innate dignity of the other — and, like other Enlightenment philosophers, advanced that true freedom is something other than acting how one wishes within the bounds of others’ rights (true freedom is, in fact, acting according to how Kant wants you to act). It’s not exactly clear if his traditionalist positions on personal morality follow from his categorical imperative, but his duty ethics in isolation prohibits many activities we would take to be personal freedoms regardless. Kant might have opposed forms of government paternalism, but his entire ethical philosophy is paternalistic by itself.

For example, what would a Kantian say about a proposal to legalize prostitution? When someone pays another for sexual favors, the former is definitely not considering the latter’s innate dignity. The person who sells their body is treated as means to an end and not an end in themselves. Presumably, since Kant thought the state has a role in regulating other behavior, he would be against this policy change. This is confusing, though, because in most trades people use each other as means and not ends. The sexual transaction is analogous enough to any sort of trade between persons, in which we consider each other in terms of our own immediate benefit and not inherent humanity. When I purchase a Gatorade from a gas station, I am using the cashier as the means to acquire a beverage. Kantian deontologists could, the same as the utilitarians, call to organize all the minutiae of personal life to coordinate with the ideals of one man from Königsberg.

Meanwhile, what does the classical utilitarian say about legalizing prostitution? We only have to weigh the utility gained and lost. First of all, it helps the customers, who no longer have to enter the seedy black market to buy a one-night stand. Next, it helps the workers, who in a regulated marketplace are treated better and are less likely to receive abuse from off-the-radar pimps. There would likely be a dip in human trafficking, which would raise the utility of would-be kidnapees. In addition, it creates new jobs for the poor. If you are in poverty, it automatically benefits you if a new way to create income is opened up and legally protected. Further, with legalization there would be less stigmatization, and so all involved parties benefit from the mitigated social ostracization too. The disutility is minor, and comes from the pimps (who lose much of their workforce), abusive tricks who get away with physical violence as long as prostitution is underground, and the slight increase in moral disgust from involved sexual prudes around the globe. So, it seems safe to award the legalization case to Bentham and Mill, and indeed decriminalizing prostitution is the right thing to do. (Although we see another fault. Since all humans are equal, their utility too is considered equally: the utility of “bad men” is worth as must as the utility of “good men,” there being no meta-util standard of good.)

In this situation, utilitarianism helps the libertarian cause of individual freedom and self-determination; in others, duty based ethics are a closer bet. Natural rights perspectives, from Cicero and Aquinas to Nozick and Rothbard, on average satisfy more of the conditions which we find essential to libertarian concerns, especially when the emphasis is on the individual. That said, Kant is a deontologist and not necessarily a freedom-lover. Neither utilitarianism nor Kantian deontology point obviously to libertarianism. The moral psychology research of Jonathan Haidt gives us reason to surmise that it’s mostly “left-libertarians” that think in terms of consequences, and “right-libertarians” that stick to natural rights or deontologic premises. I think, regardless of which theory is more correct, they both capture our ethical intuitions in different ways at different times — and this without even considering other popular theories, like Aristotle’s virtue ethics, Rawlsian justice as fairness, loyalty ethics or Gilligan’s ethics of care.*

I like a lot of Christopher Freiman’s writing on Rawls and basic income. However, I find utilitarianism has to submit to empirical inquiry a little too often to answer fundamental questions, and in its ambiguity often points to policy that disrespects the atomic individual in favor of a bloated government. I don’t think utilitarianism or deontology à la Kant are the bedrock of libertarian principles, but ultimately natural rights is the most non-incorrect position and groups together most cohesively the wide range of positions within libertarianism.

* Gilligan’s ethics of care is terrible.

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Basic income: a debate where demand magically disappears!

For a few months now, the case for the basic income has resurged (I thought it died with Milton Friedman in 2006, if not earlier). In the wake of this debate, I have been stunned by the level of disconnect between the pundits and what the outcome of the few experiments of basic income have been. The most egregious illustration of this disconnect is the case of the work disincentive.

To be clear, most of the studies find a minor effect on labor supply overall which in itself does not seem dramatic (see Robert Moffitt’s work here). Yet, this is a incomplete way to reflect on the equilibrium effect of a massive reform that would be a basic income.

Personally, I think that there is a good reason to believe that the labor supply reaction would be limited. At present, many tax systems have”bubbles” of increasing marginal tax rates. In some countries like Canada, the phasing out of tax credits for children actually mean that the effective marginal tax rate increases as income increases from the low 20,000$ to the mid 40,000$. As a result, a basic income would flatten the marginal tax rate for those whose labor supply curve is not likely to bend backward. In such a situation, labor supply could actually increase!

Yet, even if that point was wrong, labor supply could shift but without any changes in total labor provided. Under most basic income proposals, tax rates are dropped significantly as a result of a reduced bureaucracy and of a unified tax base (i.e. the elimination of tax credits). In such a situation, marginal tax rates are also lowered. This means greater incentives to invest (save) and acquire human capital. This will affect the demand for labor!

A paper in the Journal of Socio-Economics by  Karl Widerquist makes this crucial point. None of the experiments actually could estimate the demand-side reaction of the market. Obviously, a very inelastic labor demand would mean very little change in hours worked and the reverse if it was very elastic. But what happens if the demand curve shifts? Widerquist does not elaborate on shifts of the demand curve, but they could easily occur if a basic income consolidates all transfers (in kind and conditional monetary) allows a reduction in overall spending and thus the tax take needed to fund activities. In that case, demand for labor would shift to the right. A paper on the health effects of MINCOME in Manitoba (Canada) shows that improvement in health outcomes are cheaply attained through basic income which would entail substantial health care expenditures reduction.

I have surveyed the articles compiled by Widerquist and added those who have emerged since. None consider the possibility of a shift of the demand curve. Even libertarian scholars like Matt Zwolinski (who has been making the case forcibly for a basic income for sometime now) have not made this rebuttal point!

Yet, the case is relatively straightforward: current transfers are inefficient, basic income is more efficient at obtaining each unit of poverty reduction, basic income requires lower taxes, basic income means lower marginal tax rates, lower marginal tax rates mean more demand for investment and labor and thus more long-term growth and a counter-balance to any supply-side effect.

I hope that the Bleeding Heart Libertarians will take notice of this crucial point in favor of their argument!

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.

Talking to the Left: the Sword and the Shield

I regularly read the Bleeding Heart Libertarians blog, and today’s post has not disappointed, as Matt Zwolinski points his readers in the direction of James Peron’s blog.  In a piece entitled “Why Libertarians Need to Talk to the Left and How to Do It,” Peron has to remind libertarians that they are neither of the Left or the Right:

Classical liberals found much to agree with socialists on and worked with them. There are risks in alliances, one of which is that you may be tempted to compromise principles to appease partners. Classical liberals started doing just that. Instead of liberalizing socialism, the alliance resulted in pushing liberalism in a socialist direction.

This alliance remained in place until the early 1900s. During this time, classical liberalism waned, losing its intellectual power and appeal. In the end, the progressives not only destroyed liberalism but made off with its name as well.

Just as classical liberalism ended up being corrupted by the Left, the modern libertarian movement has Continue reading