The Sailboat to Liberty

Mike Rozeff is continuing his examination of the sailboat problem and its implications for libertarian law.  I am very grateful to Rozeff, as, unbeknownst to him, he is pushing me to dive into a topic that I consider both fundamentally important (and also overwhelming).

Rozeff is now answering some of the questions raised by this sailboat dilemma.  I will review a few of his responses (as I had already addressed many of these in my initial examination) before boarding this sailboat to liberty.

It will be recalled that RB (Rothbard-Block) have concluded that throwing the girl off of the sailboat into shark infested waters was their right, given that the boat is their property.  Within the strictest application of the non-aggression principle, Rozeff asks, and then answers, the questions:

Have RB interpreted libertarian law correctly? 

Yes, I think so.

There was a time I would have said no – and in fact did say no in regards to the example of shooting a child as punishment for stealing an apple.  My strong reaction to this sent me on a path – one of a few paths that have converged to bring me to the point of recognizing that there is a difference between purifying libertarian law (as deducible from private property rights) and finding liberty.  Liberty will not be found at the end of the road of purifying libertarian law.

I do believe that there is a line when punishment – and even defense – gets crossed and one enters into initiating aggression.  What informs this line?  It will not be found in the non-aggression principle.  Proportionality is not deducible from “don’t hit me first; don’t take my stuff.”

Why must there be an end to the trespass, if there is one? Why do RB’s absolute rights prevail?

There does not have to be an end to the trespass. That’s up to the sailors. Their rights to their property prevail in the theory, but not necessarily in the ethical reality in which we live. That ethical context isn’t in libertarian law.

If all we are after is liberty as offered in the theory, why is an ethical context necessary at all?  We only need an ethical context if we believe that the non-aggression principle is not sufficient to find and sustain maximal liberty for the maximum numbers in society. 

If we believe the NAP is sufficient, there is nothing for Rozeff to question; if we believe the NAP is not sufficient, then the questions must be asked: On what do we base this ethical context?  Where will we find it?  By process of elimination, the NAP either does or does not offer or otherwise create the proper ethical context sufficient to find and sustain maximal liberty for the maximum numbers in society.

Rozeff is looking to the market to provide the ethical context:

If it is moral to save the girl (Rothbard acknowledges that he’s concerned with legal rights not the morality of abortion), is it a failing of libertarian law not to handle it in a case as startling as this one?

Yes, it’s a failing. However, it’s by no means fatal because we cannot know what law will emerge through market processes, given a chance to. I think what might happen in a private law society is that insurers would incorporate ethical provisions into their agreements.

Insert ethical provisions based on what ethics? 

Will insurance companies be the entities to provide ethical context?  Why do they not do so today?  Could it be because they find that the market will not pay for these?   Or do we look around us and conclude: “yes, in the marketplace created by the society around me, I am comfortable we will find proper ethical context”?

But why do we even need an ethical context?  The market – based on private property – will be, apparently, sufficient.  Rozeff expands on this further, in another post exploring this question:

In a free market, insurers of people’s lives may offer rewards for those who rescue people in perilous situations. This saves them from having to pay death benefits. All sorts of innovations become possible that simultaneously reward ethical behavior and increase safety.

I am no expert on insurance regulations, and each state has its own regulators; however, I do not know of a reason why an insurance company is precluded – by law or regulation – from providing such a reward today.  Heck, any individual is free to make public such a reward if he chooses: “Save me from dying, and I will pay you $1000.”  After all, the reward is only meaningful if would-be rescuers know about it.  What could possibly go wrong?

I can think of market reasons why it is not provided: how easy it would be to create such “life-saving” scenarios and then collect from the insurance company.  Sure, there will be investigations and the like, yet I think it cannot be denied that this false-scenario reality is a friction to the market providing just such rewards.

Did RB end the life indirectly or directly? Is gentle eviction from the boat a fiction? Does gentle eviction get RB off the hook?

If her life is ended, it’s directly. Gentle eviction is a fiction in this case. If there is justice beyond property ownership, RB are not off the hook. Such justice would have to consist of rules beyond property ownership.

But if we are to believe that insurance companies might provide a means – via property ownership rules – to establish such justice, why do we need rules beyond property ownership?

Thin Libertarianism Applied

Mike Rozeff has, on and off, continued an examination of abortion and Walter Block’s evictionism.  His most recent post examines the reasonably analogous example of a shipwreck survivor.  Rozeff links to a Block blog post, in which Block receives via an emailer the following scenario:

“A ten-year-old girl survives a shipwreck and is floating around in the ocean surrounded by sharks. A Libertarian comes along in a sailboat. The ten-year-old climbs onto the sailboat to save herself and the Libertarian picks her up and throws her back into the water, shouting, ‘How dare you trespass on my boat!’ She drowns.”

Rozeff considers this “almost exactly the same as the abortion case,” while recognizing that in the case of abortion the owner of the “sailboat” (so to speak) voluntarily allowed the passenger on board.  Rozeff cites Block on abortion / evicitionism (and an example that demonstrates that despite the fine line Block attempts to draw between these two terms, there really is no distinction):

However, if the ‘gentlest manner possible’ implies the death of this very young human being, then so be it: the mother still has that right.” [Emphasis added [by Rozeff].]

To which Rozeff concludes:

If gently sliding the girl back into the ocean implies her death, then “so be it”. The libertarian sailors have that right.

He then offers that Rothbard says pretty much the same as Block.

Rozeff paraphrases the steps implied in this lifeboat / trespass / shark example and then offers: “I suggest that each step here be examined closely to find weak spots in the theory.”  I suggest that these aren’t weak spots in the theory; these demonstrate the weakness of expecting more from the theory than it is intended to deliver.

Rozeff then follows-up with some questions.  I will offer – and address – a few of these, and conclude with some summarizing thoughts (note: “RB” in the below means “Rothbard-Block”):

Does absolute ownership in this case imply RB may cause a life to end?  …Have RB interpreted libertarian law correctly?

We certainly have seen this argued from at least one other libertarian, and in the thinnest of libertarianism I cannot find a basis with which to argue.  Other than me, no one publicly argued against just such a position by a prominent libertarian a few years ago, so this can be considered as evidence in support of RB.

What happened to Rothbard’s theory of proportionality in punishment? Why does it or a variation or extension of it not apply?

It could apply (and I would argue, it would damn both the sailboat owners and the pregnant woman), but the concept of “proportionality” cannot be clarified via a thin application of the non-aggression principle.  It is a question that can only be answered by custom and tradition.  The NAP offers: “Don’t hit me first; don’t take my stuff.”  How does one find proportionality in this?

Is the ten-year-old guilty or innocent? Do the circumstances in some way mean that she’s not trespassing? Why are her rights inferior?

Under the thinnest of thin libertarianism, she is guilty of trespass.  What rights does she have?  She is trespassing.  There is nothing in the NAP to suggest an appropriate manner by which the property owners can take action.  The actions is in the hands of the boat owner.

Why must there be an end to the trespass, if there is one? Why do RB’s absolute rights prevail?

On what basis, from the thinnest of thin libertarianism, would RB’s rights not prevail?  It is their property.

Conclusion

If it is moral to save the girl (Rothbard acknowledges that he’s concerned with legal rights not the morality of abortion), is it a failing of libertarian law not to handle it in a case as startling as this one?

Now we get to the meat of it.  It is not a failing of libertarian law, but it is a failing of law intended to deliver liberty.

Are we after purifying the application of libertarian theory or are we after liberty?  Because if the only acceptable manner by which societal relations are governed is thin libertarianism, we will not arrive at liberty.

In other words, this is a failure of those who believe thin libertarian law will lead to a free society.  It will not.  Just wait until the father of the child gets word of the incident.  See how long a society will stay peaceful – and, therefore, in liberty – when this is how neighbors treat neighbors.

Libertarianism is damaged by those who use it as the alpha and omega of realizing a free society.  I value and respect the NAP far too much to damn it in such a manner; I don’t expect more from the NAP than it is capable of delivering; I choose not to make of the NAP a laughingstock.

The non-aggression principle can speak to when physical punishment is or isn’t appropriate; it cannot speak to the morals necessary to establish and maintain a free society; it cannot speak to the issue of proportionality, whether in defense or punishment – and commonly recognized proportionality (in the eyes of the community) is a necessary factor in maintaining peace and, therefore, liberty. 

We would be well served to stop expecting too much from the NAP.  Doing so only degrades the principle.

Unplanned

I own a house in the northwest part of the country.  I rent it out for income.  About three months ago I chose to evict a tenant; I would like to explain the story.

He moved in about five months before this.  It was the perfect place for him.  When he moved in, he was pretty unsure about life and his place in it.  Because of this – and because he seemed like a pretty good guy, we agreed that he could stay until he felt ready to face the challenges of the world.

Believing that he had a place to stay, he put everything he had into making the place “home.”  I saw that this was good for his health – emotional and mental health, as this was his struggle.

Well, like I said, about five months in I decided to kick him out.  No reason in particular – I just changed my mind.  It was early January – the middle of a bad winter.  I knew that for him this was unplanned – but that was his problem, not mine.

He said “I have no place to go; I put everything I had into this place.  You told me I could stay until I was ready to leave.  If you kick me out now in the middle of winter, you will murder me.  I will be unprotected in an environment for which I am not designed to survive.  This really is unplanned.”

I replied: “I am evicting you.  I am not murdering you; I am killing you, but it is a justified killing.”

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NB: The story, all names, characters, and incidents portrayed in this production are fictitious. No identification with actual persons (living or deceased), places, buildings, and products is intended or should be inferred.

The Libertarian Red Line

Red Line: a limit past which safety can no longer be guaranteed.

The subject of abortion has received some attention lately, what with laws in New York and Virginia and governors celebrating the furthering of liberty to murder human beings.

It is a curious topic among libertarians, a situation where the question of which human has property rights in the womb – the mother or the unborn child.  If it is the unborn child, the mother is inconvenienced for nine-months; if it is the mother, the unborn child is inconvenienced for (usually) not nearly as long…but much more permanently. 

I have addressed this as a property rights issue in the past, merely for the sake of argument; the unborn child has the rights to the womb for the natural term of the pregnancy.  However, my fundamental view is grounded in the reality that the unborn child is a human being.

Why do I label it a “curious” topic?  By this, I don’t mean to trivialize it.  I find it curious that a portion of those who claim to adhere to non-aggression consider as acceptable the murdering another human being.  Specifically, in the case of abortion: murdering the only innocent individual in the situation; murdering the one individual in the situation least capable of defending himself.

Certainly for any libertarian who bases his concept of rights in the natural law, it is quite an inconsistency in thought.  There is no liberty at the end of this road.  If a principle of non-aggression cannot see its way clear on the aggression of abortion, it is a theory that cannot stand against any aggression. 

Andrew Napolitano has written a piece addressing the current issue.  He offers a couple of concluding statements which well-capture my view on this matter:

No society that permits the active or passive killing of people because they are unwanted can long survive.

I would also say that no political theory based on non-aggression that permits the active or passive killing of people because they are unwanted has any claim of legitimacy.

No society that defines away personhood has any claim to knowing right from wrong.

I would also say that no political theory based on non-aggression and defines away personhood has anything worth listening to when it comes the right and wrong of crossing the line of aggression.

Fortunately, libertarian theory cannot be used as a crutch to support abortion; both on property rights and on murdering of innocents, libertarian theory supports the unborn child.  Unfortunately, libertarians generally claim that the theory is supportive of abortion. 

I will suggest that those that do cannot hold claim to the label of non-aggression.  They make a mockery of both the term and of libertarianism.

Constructing a Libertarian “Children’s Bill of Rights”

At least the beginnings of one.  A difficult task – what rights does the child have under the non-aggression principle?  Of course, a child has many of the same rights as the adult – not to be murdered, not to have his stuff stolen, etc.  The difficulty comes in the relationship between parent and child.  Michael Rozeff offers a starting point on this topic:

In the Ethics of Liberty, Murray Rothbard argued that parents have no legal obligation to feed their children that can be derived from the theory of rights of self-ownership.

This inference is, I believe, faulty.

Rothbard suggests that having to feed the child is a positive obligation, and libertarian theory holds no room for such an obligation.  I, of course, disagree with Rothbard on this issue of feeding a child, and I also disagree regarding positive obligations…well, not exactly, but bear with me.

The more specific point: I find it perfectly consistent with libertarian theory to hold specific performance clauses in contracts as valid and enforceable.  There are many libertarians who do not: in their view, the only valid and enforceable contract is a contract for an exchange of property.  I have written on this before – a post based on Walter Block’s views on this matter, where Walter also agrees as to the enforceability of a specific performance contract.

Rozeff concurs, albeit not using the phrase specific performance.  When dealing with a way out of this issue of positive obligations vs. starving a child, he offers:

The way out is through the idea of self-limiting one’s rights by willingly choosing positions of responsibility, such that abdicating that responsibility causes aggression.

One can commit to perform an act – in fact be obligated to perform an act – based on one’s voluntary prior action.  Call it voluntarily taking on responsibility – after which one is obliged to fulfill the responsibility.  Of course, under the NAP, one is free to take on responsibility; if another depends on your fulfilling this duty – even to the point of life or death – well, they have the right to hold you to this duty.

The parents limited their own rights when they made the child and brought it into this world.

When does this obligation end?  It is easy to say that it ends when the child reaches adulthood.  But when is that?  Rozeff offers an answer (although in a slightly different context):

The obligation may be understood by custom, common sense or by formal legal code.

There can be no one uniform answer – each child is different, as is every parent.  But society has developed a general understanding of this matter, and the understanding has been free to evolve over time – or at least would be absent any laws.

Now…does the parent also have an obligation to feed the mind of the child?  To train the child in ways that will make him acceptable to society?  Or is keeping the child in a cage – fed, for sure, but in a cage nonetheless – sufficient to have fulfilled one’s obligation?

Look, it wasn’t the child’s choice to come into this world.  Whoever brought him to the world inherently carries a responsibility – one voluntarily accepted: to prepare the child to live properly in it.

Epilogue

One can apply this same thinking to abortion, although some would argue that there was no child with which to make a deal when John and Jane were doing their thing.  I have, of course, dealt with this also – a reward contract, which is also a type of specific performance contract, is a perfectly valid tool within the libertarian toolkit. 

The individual who claims the reward need not have been known to the individual offering the reward; he need not even have been alive…or conceived at the time the reward was offered.