All Commentary
Sunday, August 1, 1982

Rothbards Liberty Reviewed

Dr. Hospers was the first Libertarian Party candidate for President of the U.S. (1972). He is the author of (among others) two recent books, Understanding the Arts (Prentice-Hall, 1982) and Human Conduct (Harcourt Brace, 1982).

The long-awaited capstone to Professor Murray Rothbard’s series of books on political economy has at last appeared. His earlier two-volume work, Man, Economy, and State, was a systematic defense of free-market economics. His Power and Market was a defense of laissez faire capitalism against numerous objections. The present volume contains his political-legal philosophy. The word “ethics” in the title is not quite appropriate, since the author does not attempt to discuss matters of good and bad, right and wrong; what he does undertake to discuss is what kind of actions should be prohibited and why.

The Natural Law Tradition

The first four chapters give an all-too-brief account of the philosophical underpinnings of the political philosophy that follows. The author anchors his views in the “natural law” tradition set forth most forcefully by Thomas Aquinas, but developed here without Aquinas’ theological framework. The crucial terms here, “man’s nature” and “natural law,” require more analysis than the author gives them. Just as it is cat-nature to purr, dog-nature to bark, and the nature of both to prowl, so it is man’s nature to use his rational powers: to form concepts, to integrate them, to make decisions, to plan for the future.

Many questions arise, however, as to the meaning of the word “nature” in this context. (1) In one sense, “the nature of X” means whatever characteristics are defining of X; thus, the “nature” of gold is stated when one lists the characteristics which define gold, those without which something would not be gold. Out of this arise numerous philosophical questions, such as the difference between “would not be gold” and “would not be called ‘gold,’” and with it the whole question (not discussed here) of whether all definitions are linguistic conventions or whether there are in some sense “true definitions.” (2) In any case, the phrase “the nature of” is generally used more widely than to include only defining characteristics. “It is in the nature of cats to purr” could still be true even though some cats never purr, while yet continuing to be cats. Similarly, a person may be or become a “human vegetable” while yet remaining a human being. (This is the basis for the defense of a biological definition of “man” in terms of physical features that distinguish human beings from all other animals—a kind of definition Rothbard does not discuss.)

In any event, I believe that the phrase “the nature of,” at least when applied to living things, is used to refer to fundamental dispositions to act and respond in certain ways. To call them dispositions is not to imply that they will always be actualized: to say that lions are disposed to hunt (whether or not this is defining of lions) is to say that they as a species possess this tendency, even though (as when they are fed all their meals in a zoo) they never actually exhibit hunting-behavior. And to call them fundamental means that other dispositions can be explained in terms of them: thus, Bergson’s definition of man as “the laughing animal” may uniquely identify mafi, but is less fundamental than the definition “the rational animal,” since if a person lacked the intelligence to appreciate a humorous situation he would not laugh.

The term “rational” is a somewhat slippery one, as illustrated by countless questions in ethics such as “It may be right to rescue a child from a burning building, but is it rational?” One manifestation of rationality, but not the only one, is presumably reasoning. But even this relatively clear component of “reason” is not clearly unique to the species we call man: Don D. Davis has given considerable evidence in his book The Unique Animal that some other creatures, such as chimpanzees, have the capacity to engage in elementary forms of reasoning. For this reason he defines man in terms of (1) the ability to symbolize (to decide to assign a relationship between two dissimilar and previously non- contiguous events), and (2) the ability to hypothesize (to propose a relationship or connection between two or more non-contiguous events). No other creature on earth, he says, has these two abilities.

Neither does the term “natural law” bear its meaning on its face: it is conceived quite differently by those in the tradition of Aquinas from what it is by certain contemporary legal scholars, e.g., Theodore Benditt in Law as Rule and Principle. The content of what is allegedly known by insight into “natural law” is far from clear.

Rothbard’s example of wanton killing (at least within the tribe) being wrong is an unusually safe one: this is one of the few examples of a moral rule that would be upheld in virtually any society and on practically every ethical theory; in any case, a killing that one would wish to defend would not be called “wanton,” just as a killing that one considered justifiable would not be called “murder.” But when we leave these “safe” examples, what specific rules of conduct does natural law enjoin or prohibit? Does it permit adultery? abortion? euthanasia? Does it insist on “one husband, one wife”? Does it prohibit cruelty to animals? It is far from clear what tenets allegiance to “natural law” commits one to. Nor will any reference to “an objective moral order” (p. 11), at least without coming to grips with the many overlapping meanings of “objective” in this context, help to fill the gap.

All Rights as Property Rights

Then follows a lengthy discussion of rights. The term “a right” is neither defined nor distinguished from related terms such as “a liberty,” but the philosophical literature on such definitions and distinctions is already endless. Instead, Rothbard comes at once to his most original and distinctive thesis: that all rights are reducible to property rights. For example, a person does not have the right of freedom of speech on another’s property, e.g., to shout “Fire!” in a crowded theater or to shout obscenities in a cathedral. Most writers who insist on freedom of speech as a right have not been much bothered by considerations of property, and Rothbard “sets them straight” with clarity and elegance.

Whether free speech is limited solely by property rights, as Rothbard contends, will be a matter of continuing controversy. For example, (1) courts have held that distribution of leaflets in a company-owned town should be permitted even though the company objects, because of the importance of the dissemination of knowledge and opinion. Nor would everyone agree that all forms of speech, even on one’s own property, should be permitted: (2) If you gather a group together on your yard, across the street from a factory, all shouting “Burn the factory down!” most courts would call this incitement to riot (as did Mill), al though Rothbard contends (p. 80) that “‘inciting to riot’ is a pure exercise of a man’s right to speak.”

Questionable Premises

In order to preserve the thesis that all rights are property rights, Rothbard must interpret the concept of property in certain ways which, according to some critics at least, involves making square pegs try to fit round holes. Thus, (1) since crimes against persons (murder, rape, battery, etc.) are to be condemned as much as crimes against property such as burglary and theft, one must accept the Lockean view that “every man has property in his own person.” But many writers have argued at length that ownership is a relation between a person and something other than that person, in which case one cannot speak of self-ownership.

Moreover, (2) There are some kinds of activity which the laws of virtually every nation have declared punishable although they do not fall under the heading of property, such as libel, slander, and blackmail. One’s reputation, says Rothbard, is not one’s property, and thus anyone should be free to say about you whatever they like. By contrast, violation of patent and copyright is a violation of one’s property rights (one’s right to reap the fruits of one’s labor) and should be prohibited. Many persons will not see that sharp a difference between the two classes of offenses. Even though the book you have written is your property and your reputation (as opposed to your character) is not, allegations falsely made about you by others may cause you greater harm (e.g., the loss of your job) than loss of your material possessions. And it could reasonably be contended that all infliction of harm on one person by another should be forbidden.

Rothbard defends the Lockean view on property rights in land: that a man may rightly come to own previously unowned land by “mixing his labor” with it—“the homestead principle.” (Georgists allege that persons may own the crops grown on land but not the land itself, which is of course an invitation for government to claim ownership of the land—a position against which Rothbard argues effectively.) Many persons who would agree that one should own previously unowned land if he clears the forest, tills the soil, and plants crops on it, would not agree that he should own it if by accident he has merely found something (e.g., valuable minerals) on it. Rothbard argues effectively against this position as well: if the finder has no right to it, who does?

But there are many other cases, which he does not discuss, in which the answer is not so clear. (1) What if a man does nothing to a piece of wilderness land but chooses to keep it in its wild state, defending it against trespassers with guns or trained dogs? (2) What if he runs around a piece of land twenty times without stopping? Has he “mixed his labor” with it then? (Need it be “socially useful” labor like agriculture?) (3) What if he does nothing to the land but purifies the polluted air above it? Does this entitle him to nothing? (4) What of riparian rights? How is the dispute to be settled between residents of California and Arizona as to whether both may use the waters of the lower Colorado River? Can anyone take what he likes where he likes, or can a man own a section of the river and drain it all off for himself, so that there is only a dry bed downstream? (5) Can one own a section of ocean by fishing in it or traversing it with a boat? Or, to use Robert Nozick’s example, if a man owns a can of tomato juice and pours it into the ocean and waits till it has dispersed, can he claim ownership of the ocean (provided it was previously unowned)? (Rothbard discusses some aspects of ownership of bodies of water in his Power and Market.)

Possible Exceptions

Even over what is clearly one’s own property, one does not have the right of unlimited use or control. A man does not have the right to lure people onto his property, kill them, and bury the bodies in the basement. This, of course, violates their right to “property in their own persons.” There are many other problems about what you may do with your house or yard: may you surround it with a moat containing piranhas, or set up an electrified fence that will kill attempted trespassers? May you build your house uphill from another, so that when the rains come the property below will have mud slides?

Do policemen have the right to enter the property “on suspicion”? Rothbard says that if they do enter it and don’t find the evidence that will incriminate, they should themselves be subject to arrest. I submit that if policemen were hamstrung by such a requirement, few crimes would be solved: that in the interests of finding the guilty party the owner does not have the right to forcibly evict them, and even if it turns out that the suspect is not guilty they should not be subject to prosecution for making a reasonable mistake. If the guilty party is not Jones but Jones’ identical twin, should policemen really be prosecuted for stopping and searching Jones in the reasonable belief that they are apprehending the twin?

Nor, I would add, should a man have the right to use his property in such a way as to expose others to unreasonable risk. Should you be permitted to raise poisonous snakes in your back yard in the city? Is it really necessary for neighbors to wait until one of them has been bit? A person, as the owner of his own body, may take any kind of risk for himself alone; but the exposure of others to risk is surely a proper matter for legal prohibitions. Should a man be permitted to manufacture atomic bombs in his basement? or poison gas? (One wonders whether Rothbard would use the criterion of negligence or that of strict liability in such cases—an extremely important issue which remains undiscussed.)

Laws regarding the transmission of property—by sale, gift, or bequest—are well discussed by Rothbard. If Jones’ heirs claim property that has been seized from Smith and is now occupied by Smith’s heirs, Jones’ heirs have the right to dispossess Smith’s heirs of it, minus whatever movable additions and improvements Smith’s heirs have made to it. The conditions under which Jones is entitled to be an owner, however, are not always so clear. Should the present inhabitants of the United States be required to return the land to the Indians, who had it first? Or should such claims be denied on the ground that the Indians—most North American Indians, at any rate—did not really reside in a certain place and grow crops there, but were nomadic, wandering about from one area to another, staying in one place only as long as the hunting and fishing was profitable and then moving on? Hunting requires labor; does that labor constitute ownership—of the animals only, or of the land as well?

The Right of Self-Defense

That a person has the right of self-defense against aggression (as well as the right to defend others against aggression if he chooses) seems clear enough. What is less clear is the extent to which he is entitled to respond to threats of aggression. If a man looks at you threateningly and moves to pull out what you think is his knife, have you the right to take a pessimistic view of his intentions and attack him first (the “pre-emptive strike” problem)? Since most threats are not followed through, you presumably have no right to kill a man just because he says “I’ll kill you,” but at what point do you have the right to kill him, under the heading of self-defense?

These are important and troublesome questions to which neither Rothbard nor anyone else has presented clear-cut answers. But I would make the point that it is not necessarily physical aggression or threat thereof to which one’s right to self-defense is limited. If a man continually baits you, calls your wife a whore, or shouts that he has just raped her, and you finally take a swat at him, are you guilty because you started the physical fight? Might he not be called the initiator even though his aggression was only verbal? This is surely clear in the case of theft: you catch a man stealing your tape-recorder and you forcibly take it back from him. You started the physical confrontation; he was only peacefully taking what belongs to you. The same point could be made concerning trespass—and possibly also the breaking of contracts. There are many forms of aggression, and many proper (and many improper) forms of retaliation.

That punishment should be “proportional to the offense” is a principle Rothbard defends at some length, and quite rightly: you shouldn’t be permitted to shoot dead the neighbor boy who is stealing a watermelon from your garden. But there is much dispute as to which offenses are the most serious and therefore merit the most serious punishment. Offenses against a person aren’t always worse than offenses against property—many people would rather be mauled or lose an ear lobe than lose a precious heirloom or their cache of gold.

Most troublesome of all are those cases in which damage or injury has been inflicted but the inflictor had no guilty intent. Cases of accidental injury or damage are far more frequent than those intentionally administered, and the criteria for punishment much less clear. One wonders what Rothbard would do with “Typhoid Mary” cases: the women were carriers of a lethal dis ease, and communicated it to others by their mere proximity. The carriers were guilty of no criminal act, but were nevertheless incarcerated for life because of the constant danger they represented to others. From the point of view of social utility, such incarceration was surely justified; but Rothbard, not being a utilitarian, would not accept such justification. Yet from the point of view of criminal desert, there was no guilt at all, no guilty act which would constitute a just basis for such incarceration.

To Be Taken on Faith

In general, Rothbard’s contentions on the many matters he discusses will seem most plausible to those who already have some knowledge of free-market economics. His statement of libertarian axioms and the consequences thereof will not be likely to carry conviction by themselves. Two examples must suffice:

(1) If you had reason to believe that Rothbard’s views about ownership of land would have as a consequence that most land-ownership would become concentrated in the hands of a few owners, with the mass of people working for the owners, you might be less ready to accept Rothbard’s views on the acquisition and transmission of property rights. You would be most likely to go along with his view if you had already been convinced, through empirical consider ations (such as history), that such a result would not occur. (For example, it was Gabriel Kolko’s Triumph of Conservatism that convinced me that ownership without government regulation would result in the dispersal of ownership rather than its centralization in the hands of a few.)

(2) If you believed that laissez faire would make a considerable portion of the population poorer even though it made some richer, you might well think twice about the acceptability of laissez faire: only after you had been shown by historical evidence that “a rising tide raises all boats” would you be inclined to accept it. A philosophy in which liberty was the paramount value (as in Rothbard) alone would not do it: “What good is liberty to a man if he’s starving?” you might say. You would first have to be convinced that under laissez faire fewer people (or none) would starve than in any other economic system; only then would you be ready to accept the system. Doctrines of natural rights and property ownership alone would not do it.

In Quest of Justice

Even so, many persons will not follow Rothbard all the way in the way he traces out his philosophy of liberty. In Rothbard, for example, a person should not be coerced into doing anything as long as he has not treated others coercively. He is quite consistent with this principle when he alleges that no one should be forced to do jury duty or appear as a witness at someone’s trial, even if his testimony would save the defendant’s life. There should be no power of subpoena, for subpoena means coercion of the innocent. Even the defendant need not appear at his own trial. Rothbard is certainly consistent with his own stated principles here, and does not shrink from their consequences. Nevertheless the consequences might be such as to lead one to re-think or qualify the principles. Many persons, including many of Rothbard’s fellow libertarians, are convinced that the most important factor in the case is the determination of guilt or innocence of the defendant—and that if a witness would be inconvenienced by appearing, he should nevertheless be required to appear, in the interests of justice.

Any voluntary exchange of goods or services (even lethal drugs), should be permitted, says Rothbard. If a blackmailer says to you, “I’ll tell everyone your best-kept secrets, and thus cause you to lose your job and so on, unless you give me $10,000,” this, says Rothbard, is a voluntary exchange, agreed to by both parties, and should not be prohibited.

What Is Voluntary?

In all this I fear that not enough attention has been given to the meaning of the term “voluntary.” The fact that both parties agree to it is not enough to make it a voluntary transaction. For one thing, (1) coercion may be involved in the agreement, and when it is coerced it is not voluntary. Rothbard grants the coercion in the case of a robber who holds you up at gunpoint and says “Your money or your life” (though even here you have a choice, however unpleasant); he does not grant that coercion exists in the case of the blackmailer.

But there are other things besides coercion that can make an “agreement” less than voluntary, such as (2) extreme forms of psychological pressure. If a man is starving and he is told to sign a contract for labor for the next ten years at 10¢ an hour in return for a crust of bread now, and he agrees, is the agreement voluntary? If there is widespread unemployment and the only way a man can keep his job (there being no others in the area which he can obtain) is by agreeing to a homosexual tryst with the boss, is that agreement voluntary?

I would add that (3) having knowledge relevant to the case is also necessary: if the physician says to the prisoners “You’ll all get out early if you let yourselves be inoculated with this vaccine,” but doesn’t tell them that the vaccine will have enduring painful side-effects and may even kill them, is their agreement to the experiment voluntary? Any presentation of a philosophy of voluntarism, such as Rothbard’s, must be extremely careful to state the conditions under which an agreement, though assented to, is not voluntary. I would contend that the prisoners’ agreement is not voluntary, since (as in cases of fraud) they would not have consented if they had known the full facts of the case.

Just as Rothbard oversimplifies the concept of voluntariness by considering any arrangement voluntary if it is agreed to by both parties, so he oversimplifies (in my opinion) the concept of freedom by saying that a person is free as long as he is not coerced by others. (He is surely right, however, in taking Hayek to task for mixing up the concept of coercion with other ingredients.) One is welcome, of course, to use the word “freedom” to mean simply absence of coercion, but it is worth pointing out that in our actual discourse we regularly use the terms “free,” “freedom,” and “liberty” to include much more than this.

I suggest that the most genera] meaning of “freedom” is lack of constraint upon one’s actions, and many things besides coercion can constrain: coercion is only one (rather extreme) case. If a man is a compulsive gambler and through psychotherapy is rid of this tendency, he may quite rightly say that he is now free from his addiction, although no one was coercing him. (There are countless such cases of what psychologists call “internal compulsion.”) If a woman obtains a divorce from her husband, she can now say that she is freed from her marriage bonds. Moreover, we are not only free from constraints of various kinds (negative freedom), we are also free to do certain things (positive freedom). The two are closely related: if I am free from the chains that bound me, I am free to walk about as I please. What others have called positive freedom, however, Rothbard does not call freedom at all.

If a man is starving on a desert island, Rothbard would say that he is free because no one is coercing him; if a mountain climber has fallen into a crevasse, and has no option but to wait for help to arrive, Rothbard would say the same, although there is clearly a difference between this man and one who is able to walk about, a difference which most of us would describe as the difference between being free and not being flee—that is, free to do things which the unfree person cannot. As we constantly use the word “free,” freedom does have something to do with the availability of options open to us—in general, the more options, the freer we are—although this very major ingredient of our ordinary concept of freedom is entirely excluded by Rothbard when he defines freedom in such a way as to cut all this off.

Utilitarianism Challenged

Throughout his treatment of these issues, Rothbard attacks utilitarianism. In my opinion he is justified in doing so—utilitarianism would, for example, condemn an innocent person to death if thereby some great social good (such as great happiness for others) could be realized. But this does not justify him in occasionally mischaracterizing the theory he is opposing. In Rothbard’s example of the government officials who dissolve their government but as their last official act distribute all property rights in the nation to the Rockefellers and Kennedys of the realm, he says that this distribution would have to be accepted by utilitarians as a de facto accomplishment. But it would not. Nor would the utilitarian view necessarily be the one Rothbard attributes to it in the other example he cites.

Utilitarians are committed to only one thing, that the sum of the consequences of one’s acts be the best possible when viewed in their totality—and the best consequences might well occur not from recognizing such claims but by denying them. In each case, one would have to examine each possible alternative and see which one was likely to result in the maximum amount of happiness (or well-being, or want-satisfaction, or whatever state is held by the individual utilitarian to be intrinsically good). It is not even necessarily true according to utilitarianism that it would be better to save two lives rather than one: if greater total happiness would result from saving the one (e.g., if he were an Einstein, or if the two had a predominance of misery in their lives), then the one should be saved: all that is required is that the greatest possible intrinsic good be achieved by one’s action.

Even Bentham’s stock formula “the greatest good of the greatest number” is inaccurate, for it sounds as if the happiness of the greatest number is to be preserved at the expense of the smaller number, whereas in fact everyone is to count in the total, the smaller number never being ignored but often being outweighed. Indeed, the wishes of a minority should (according to utilitarianism) sometimes prevail, e.g., if the granting of their wishes produced in the long run a higher total of happiness (including, of course, less unhappiness) than the granting of the wishes of the majority.

The Need for a State

There are policemen to enforce the law, and judges to interpret it. It would seem that there must also be legislatures whose function is to make the law. And doesn’t all this require a government, a State? The State must be limited to a few essential functions, but isn’t it necessary that a State, however limited, exist?

No, says Rothbard. Part 3 of his book is devoted to the extirpation of the State, root and branch. If to coerce people is to violate their rights, then the State as the No. 1 coercer of people must be eradicated totally. The State is incompatible with liberty, because it (1) coerces individuals into conformity with its laws, whether or not they wish to obey (and even if they find certain laws stupid or immoral), and it also (2) pays for its activities through the power to tax, that is, to take money earned by individuals without those individuals’ consent, which is theft.

How then are the rights of individuals to be protected without the State? Individuals voluntarily band together for their mutual protection into “defense agencies,” in which other individuals are hired to protect their lives and property. These agencies are associated with “arbitration agencies,” to decide the guilt or innocence of accused aggressors. The entire process of protection of rights could, according to Rothbard, proceed without the State, and much more justly and efficiently.

Anarchy vs. Law

These contentions open up once again the long-standing dispute among libertarian theorists between anarchy and limited government. The main arguments and counterarguments have been bandied about for so long that it would be tiresome to repeat them all here. (See, for example, Rothbard, For a New Liberty, vs. John Hospers, Libertarianism.) Given that an individual has a right to protect his person and property against aggression, it is quite a different question by what means he can best do this—this would seem to be a matter of strategy rather than of principle. It is true that the State currently does this through its power to tax, which is coercive. Some would say that for such necessary purposes a degree of coercion is justifiable; others would try to work out (as some have) methods of voluntary contribution to substitute for compulsory taxation. Whichever solution is adopted, several considerations could be advanced for preferring a single power, such as the State, to a set of competing agencies hired by individuals. I shall briefly summarize only a few of them here.

Chaos and Conflict

1. To have competing agencies working in the same geographical area would lead to chaos and conflict the moment they attempt to enforce different rules. And it seems to me virtually certain that this is what they would do. Different people have different ideals, and some of these ideals are held so strongly that their proponents would gladly use force to inflict them on others. This may be unfortunate, but as a feature of human beings it seems to me quite ineradicable. In the Bible belt, many persons (perhaps the majority) would gladly pay dues to agencies to enforce the closing down of X-rated movies and “adult bookstores,” perhaps even arresting people for committing adultery or failing to believe in the literal inspiration of Scripture. Others would form an agency to protect themselves against all those who in their opinion constituted threats to “the morality of the community” or “those moral rules which keep together the fabric of society.” Indeed, a group of murderers might form an agency “Murder Inc.” and go about killing and looting. (I have never been convinced by argu ments that such agencies would not come into being, or even in some circumstances prosper.)

As long as different people have different convictions and hold them strongly enough to be willing to use force to make others share them—and the lessons of history show us quite clearly that they would—we would have, instead of true “defense agencies,” competing vigilante groups, the strongest of which in a given locality would force their edicts upon everyone as law. It is true that libertarians would “live and let live” except for aggressors against persons or property, but society is not composed exclusively of libertarians, and as long as this is so (and there is every evidence that it will continue to be so in the foreseeable future), the prospect of different agencies enforcing different rules must be squarely faced. Not only would different agencies enforce different edicts, they would make them, in the response to the (often whimsical, often evil) demands of their paying clients.

Rothbard alleges that once you have a government, no matter how limited, it will almost inevitably exceed its original powers (since it has the force to do so) and interfere coercively with people’s lives. I agree: the tendency of limited governments is to become unlimited; that is why eternal vigilance is the price of liberty. But I am no more optimistic about the tendency of competing vigilante groups. Having the guns to defend you, they can use those same guns to attack you, and indeed to attack also nonmembers of their association who may be too weak to resist. What would prevent such an agency, or an alliance of such agencies, from ceasing to defend you, if they can get their spoils by force without having to render you the services which they have contracted to deliver?

Advantages of One Agency

2. Quite aside from all this, there are distinct advantages in obtaining protection from a single political unit that protects persons and property throughout its domain. Suppose that Smith has minerals on his land worth $10 million, and that his neighbor, Jones, knows this. It will be worth at least $9 million to Jones to use his hired agency to take over Smith’s land; and it would be worth at least $9 million for Smith to protect his land against such invasion. Such an expenditure would clearly be a waste of money for both parties. Would it not be preferable for both to have one agency, say the State, to protect each person’s property rights? Both parties, knowing that the State would come to the aid of anyone whose rights were being violated, would usually refrain from violating them. Similarly, if you owned land along the Mexican border, you would have to spend so much of your income protecting it against trespassers that the price would probably exceed the income you could get from the land. No defense agency and no insurance company would be likely to take on such an expensive defensive operation, except at enormous cost; but a government would.

There are certainly cases in which individuals would have been wiped out by gangs of marauders superior in numbers, and have been rescued from this fate by government troops. Would Rothbard approve the presence of such troops (for defensive purposes only), in spite of his opposition to governments? Presumably not.

As Richard Taylor points out in his Freedom, Anarchy, and the Law, the State does not engage only in prohibitory activities (prohibiting certain kinds of actions), it also engages in what he calls enabling activities. By having the legal boundaries to your yard duly recorded in City Hall, you are enabled to call this property your own. You could indeed have a private agency record your ownership somewhere, but another claimant to your property could have the same piece of land recorded in his name at the offices of his agency. Who would actually take possession of the property would then depend on which agency had the most guns to defend its claim.

Similarly, if you wanted to adopt children you could go around bringing in homeless children, but unless there were one agency (e.g., the State) officially empowered to call them yours, what would prevent another person’s agency from taking those same children from you a week later on behalf of one of his clients who would then call the children his? (An arbitration agency would settle the matter, it is said. But which arbitration agency would win out? In the end, the one with fewer guns would have to submit to the decision of the one with the most. Through the entire arbitration process both sides would know which one was stronger. Force, not justice, would become the ultimate arbiter of the dispute.)

Degrees of Evil in Government

3. Rothbard is opposed to all kinds of gradualism in getting rid of the State. If he could do so by pressing a button, he would abolish governments at once. But there are problems about this also, similar to the problems of removing life-support systems from very ill patients. If social security and welfare were stopped at once, with no period of interim adjustment, many thousands of people would probably starve. No police force would suffice to handle the looting and killing. With no system of voluntary financial help yet in place—not to mention the fact that Social Security recipients have been forced to pay into the fund, and thus have a justified claim on the return of their money—would Rothbard push a button that caused this to happen?

Surely there are at least degrees of evil in governments. Would Rothbard not prefer the survival of a limited government to that of a totalitarian government? or would he say “a pox on both your houses” because they are both governments? Would he have been against the American Revolution because its outcome was after all a government, even though it was a much more benevolent one, and more dedicated to individual rights, than any that had thereto-fore existed?

International Relations

All these problems are multiplied when we come to the matter of international relations. Rothbard’s position is simple: there should be no political units called nations, hence afortiori no relations among them. This, however, leaves numerous questions unanswered concerning the present world in which nations conspicuously do exist.

1. There are numerous problems involving national defense. At the moment these are handled by governments via taxation, and there is no foreseeable time in the future when this arrangement is likely to change. Will Rothbard tolerate national defense, at least pro tem, if the alternative is no defense at all? Suppose that (1) a nation stronger than ours attacks us, and that (2) no system of private voluntary defense is yet in place. Should the attack be countered with tax-supported defense forces, when the only alternative is annihilation? Surely to ask this question is already to answer it—unless the libertarian theorist is prepared to accept annihilation not only for himself but for everyone else, in the interests of his theory.

Libertarians, however, have consistently downplayed this problem by alleging that there is in fact no real threat to the United States, and that therefore the problem does not arise. (But what about smaller, less powerful countries?) They have habitually distorted the data and played fast and loose with the facts in order to hold on to this answer. But the ploy cannot work: even if it were true that there is no external threat to Americans, it would not answer the question, “What should be done if there were?”

If the United States disbanded its armed forces today in the interests of libertarian theory, it would surely be ripe for the plucking by any aggressive nation that saw its chance to defeat us before any voluntary system of national defense could be established (if it ever could). If de nationalization is to work, every nation would have to do it simultaneously. The chances of this happening are so infinitesimal as hardly to be worth discussing. (Besides, there is a whole array of problems concerning voluntary defense systems, such as the problem of freeloaders: enemy missiles will destroy the person and property of payers and non-payers alike, so there is no obvious advantage, as there is in fire insurance on one’s house, in paying one’s dues to the “national defense” agency.)

The fact seems to me quite clear: survival is not merely optional. In the 1930s most Western nations apparently believed that if they reduced their defense forces, Hitler would do the same. More than 50 million deaths in World War II resulted from this mistake. The same mistake was made in the 1970s, of which we may yet reap similar consequences. Only a strong deterrence stands between us and destruction. To say that there should be no deterrence because it is after all undertaken by that greatest of evils, namely nations, is to blind oneself to an even greater evil, namely annihilation.

Multiple National Defenders

2. If, for a single national defense, one substitutes a series of competing agencies to which people pay dues to defend themselves against external attack, other problems arise. Defense agency A may decide that nation X is the greatest potential threat, and agency B that nation Y is the principal threat—and their strategies will differ accordingly. Even if both agree that nation X is the enemy, the means of defending ourselves against X may well be a matter for disagreement: the strategies of various agencies might even get in each other’s way, and the entire attempt at defense might prove ineffectual as a result. There is surely an advantage in having one defense policy rather than a multiplicity of them whose total effect might be chaos. Competition in laundry soaps is healthy and productive; competition in defense strategies, with each one being implemented by a percentage of the population, could well prove disastrous. There are some things that it’s better to have just one of, and it may be that official records of property ownership and unified defense strategies are among them.

An Indefensible Position

3. There is an additional problem as well. Rothbard claims that the only justified war is one that does not involve even one person who wants no part of it. These are indeed heroic words, and a consistent application of his own principles. But suppose now that a totalitarian nation attacks us, and that the only way to protect ourselves is through a massive defense system (not retaliating by aiming our missiles at the aggressor, but simply neutralizing the aggressor’s missiles against us). Suppose, however, that as a result of undertaking this defense, just one person who wanted no part of it was inadvertently killed. Would Rothbard hold that therefore no such defense should be undertaken? Apparently he would. But what if the alternative to undertaking such defense is that many people would be killed in the enemy attack?

Would Rothbard say that the American Revolution should not have been undertaken, even though it was to a large extent a libertarian revolution, if in the course of its occurrence just one person who didn’t want to take sides in the struggle was killed or maimed? No one, of course, wants to sanction the death of even one innocent person; but what if the only alternative, in the real world rather than that of libertarian theory, is the death of many more?

Like Tolstoy in What Is Art?, Rothbard does not shrink from the consequences of his own principles; indeed, he traces them confidently and proudly. But some of these consequences are so controversial, and some others so downright alarming, that, while accepting that they are consequences of the principles initially laid down, many readers will prefer to re-examine the principles themselves, and attempt to qualify them in such a way as not to yield the “wildest” and most “far-out” of the consequences.

  • John Hospers was the first presidential candidate for the Libertarian Party and stood in the 1972 general election.