Friday, May 4, 2018

Rothbard and Customary Law

An email from a reader (offered here with permission):

I read with great interest your excellent essay for today on "Integrating Classical Natural Law and Libertarian Theory." I wonder, though, whether the criticisms of Rothbard given in Carlo Lottieri's essay, which you quote, are correct.

Lottieri suggests that Murray, in contrast to Leoni, neglects the contextual nature of law. Unlike Leoni, Murray sought to devise a libertarian law code that would cover all contingencies. Precisely the opposite is the case. In his essay on pollution, he emphasizes the role of custom and precedent in applying law.

Also, Murray wrote an essay praising Leoni for his emphasis on judge-made law, as opposed to legislative law. In Rothbard's view, though, judge-made law must be evaluated by the standard of natural law, interpreted in a libertarian way. Rothbard's view expresses exactly the dependence of libertarianism on cultural conditions that you have done so much in your excellent essays to emphasize.

In your essay, you ask about the meaning of "positive law." This would I think refer to law as enacted by a sovereign body, rather than to a contrast with negative laws.  [In a follow-up email (and within the context of our exchange), I was offered this link on the topic of legal realism.]

I always enjoy your essays. You are shedding much-needed light on difficult issues, and all of your readers are in your debt.

From a comment by A Texas Libertarian to this same post:

Is the author suggesting that Rothbard's "libertarian code" was not rooted in Aristotle and Aquinas? In the "Ethics of Liberty" Rothbard repeatedly draws inspiration from both.

ATL offered several other critiques of Lottieri’s piece, along with evidence as to his statements.

I offered, in reply to ATL:

ATL, I was careful to present the position as that of the author and not mine, and I appreciate that you took it this way. I think the author could have made all of the same (very valuable) arguments without the Rothbard stuff - maybe I should have done the same.

But then, I would not have received some great feedback from one of the giants in our community, pointing me to a couple of Rothbard pieces that set the record straight, if you will.

I intend to write about this in the coming days, as I feel I owe it to Murray!

Consider this “the coming days.”  Let’s first consider Rothbard’s view on custom and tradition in applying law, with a look at his essay on pollution.  I find a hint of this topic being addressed even in the second paragraph:

There are many actions against which it is not considered appropriate to use violence, individual or organized…but few think of using violence to enjoin or combat them.

There must be some standard, some precedent, some baseline, separating the “few” who would think about using violence to enjoin such things vs. those who would not.

If ethics is a normative discipline that identifies and classifies certain sets of actions as good or evil, right or wrong, then tort or criminal law is a subset of ethics identifying certain actions as appropriate for using violence against them.

My work in this blog, and the feedback from many of you, has generated significant “learning” for me.  One of the most valuable – and recent – is an understanding of the term “ethics,” as expanded here:

Ethics: The term ethics derives from Ancient Greek ἠθικός (ethikos), from ἦθος (ethos), meaning 'habit, custom'.

And, for emphasis, the Latin for “morality”:

Mōrālis: From mos ‎(“manner, custom, way; law”‎). First used by Cicero, to translate Ancient Greek ἠθικός ‎(ēthikós, “moral”‎).

Rothbard’s use of “ethics” in deriving law is inherently the use of “custom” to define law.

…the true jurist or legal philosopher has not completed his task until he sets forth what the law should be, difficult though that might be.

Begging the question – which Rothbard has seemingly already answered: through what lens, through what filter?  The lens, the filter, is ethics – which derives from custom.

Describing the jurist who abdicates his duty – by relying on “sheer fiat and arbitrary caprice,” Rothbard offers:

Thus, the Austinian jurists proclaim that the king, or sovereign, is supposed to lay down the law, and the law is purely a set of commands emanating from his will.

What is an “Austinian jurist”?

John Austin (3 March 1790 – 1 December 1859) was a noted English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional "natural law" approaches, Austin argued against any necessary connections between law and morality.


Returning to Rothbard and the critical issue when considering law by custom:

Even the older concept that the law should be determined by tribal or common-law judges, who are merely interpreting the custom of the tribe or society, cannot escape normative judgments basic to the theory.

What if it is a “bad” custom”?  Rothbard addresses this:

Why must the rules of custom be obeyed? If tribal custom requires the murder of all people over six feet tall, must this custom be obeyed regardless?

In the Germanic tradition, law was addressed via a filter of “old and good.” The oldest customs; only good customs.  “Oldest” was objectively determined (as best as could be the case given the lack of – and sometimes fabricated – documentation as we would understand it today); “good” was based on some standard – and this is the critical point in answering Rothbard’s question.  How does Rothbard answer it?

Why cannot reason lay down a set of principles to challenge and overthrow mere custom and tradition?

There is that pesky word…reason.  “Reason” allowed for slavery in pre-Christian and post-Reformation Europe; “reason” disallowed slavery in Medieval Europe.  How is one to filter reason? 

Rothbard filters it through the idea of invasion of person and property; it must be physical:

The normative principle I am suggesting for the law is simply this: No action should be considered illicit or illegal unless it invades, or aggresses against, the person or just property of another. Only invasive actions should be declared illegal, and combated with the full power of the law. The invasion must be concrete and physical.

He further offers examples that coincide well with the idea of custom and tradition: how to decide between the polluter and the neighbor?  The answer will be found via determining who was there first.  How about between the airport and the neighboring property owner?  Again, who was there first?  This is a perfect fit with the concept of “old” law.

Further, Rothbard offers that as knowledge changes, the law should change.  If it is one day discovered that radio waves harm the physical body, then generating radio waves should be considered an aggressive act.  This confirms to the idea of “good” law.

My one beef with Rothbard: he does an exemplary job of exploring the nuances of pure libertarian law applied under his view of physical violations.  It reminds me of the task Walter Block has taken on: how to move one-millionth of an inch closer to the truth.

I call it a “beef” not because I necessarily disagree with any of his views.  Instead, in my rather humble opinion, I believe such exercises will not bring value in application (albeit, I am certainly motivated by my personality-type).  Rothbard (and Block) work very hard intellectually to reduce the amount of gray in our political relationships.  I don’t think this will be relevant in application.  Gray is – and will be – reduced by those who participate in a given society; it will be reduced by custom and tradition. 

It remains – which customs and traditions will survive and which will be allowed to die?  I don’t think this question will be answered one-millionth of an inch at a time – life won’t wait.  We have an example in the west that lasted for centuries – and remnants of which continue through this day.  Custom, filtered via the old and the good, with both old and good conforming in many ways with libertarian property rights theory as described by Rothbard. 

In many ways, but not all ways.  For example, there were limits on the acceptable options in disposing of property: property could not be destroyed, not even by the owner.  This could be due to something as sophisticated as the idea that all property belongs to God and we are merely stewards, or as simple as…life was hard and economies were relatively undeveloped and it would be considered criminal to destroy property.  I don’t know which…or maybe both.  But this is secondary, and relatively unimportant to the main discussion.

“Good” was defined, as best as I can tell, by the intersection of the Germanic idea of “honor” and the Christian ethic.  Not a bad intersection, one that caused individuals to consider the value and reason of their ancestors, the noble method of how they lived their lives, and the import of what they left for the future.  Rothbard’s views in this essay fit neatly within this intersection.


This post has gone long enough, and I have not yet covered the second suggested reading, in which Rothbard praises Leoni’s work regarding judge-made law.  This will wait for another day.

Returning to the primary subject of Rothbard’s post on property rights and pollution: one cannot read this post without understanding that in every question that arises on this specific topic, Rothbard is applying the law in a manner that could be described as “old and good.”  It is in the best tradition of customary law.

This is good enough for me.  Where I have raised some questions above regarding possible differences I might have with Rothbard, I view these as left open for my future learning.  In addressing pollution, Rothbard’s examination of the application of law based on property conforms quite well to the old and good law found in medieval tradition and custom.


  1. This approach to law is well and good, but it leaves one category out.

    The category of human organisation. Can a policeman legally do more than the same person as an individual?
    Are we obliged to pay heed to orders coming down the hierarchy?
    Do we have to give up property to support the tribe?

    1. “Can a policeman legally do more than the same person as an individual?”

      The king had a duty to uphold the law, not create the law.

      “Are we obliged to pay heed to orders coming down the hierarchy?”

      Every noble had veto power if they could demonstrate that the king’s decision was inconsistent with the old and good law.

      “Do we have to give up property to support the tribe?”

      Serfs worked several days per year for the noble (this obligation generally increased over the centuries). This was in exchange for protection. The serf did not have to stay, he could choose to live outside of protection, but it was a life likely to not end well.

  2. "Rothbard’s use of “ethics” in deriving law is inherently the use of “custom” to define law."

    I believe this is correct, especially in the way Rothbard formulated libertarian ethics.

    "There is that pesky word…reason. “Reason” allowed for slavery in pre-Christian and post-Reformation Europe; “reason” disallowed slavery in Medieval Europe. How is one to filter reason?"

    Reason is just a tool. It can be used effectively, and it can be used poorly; it can be used to do evil, and it can be used to do good. It must be filtered by discipline.

    Reason is all about argumentation and consensual agreement of how things either are or ought to be. The object of reasoning with another is to convince. Any denial of the conversation in favor of initiated force, is a denial of reason, and an embrace of aggression.

    I like G.K. Chesterton's quote on logic and truth.

    “You can only find truth with logic if you have already found truth without it.”

    I think it fits nicely with logical deductions of Misesian praxeology based on the observable and irrefutable truth of human action. Rightly considered reason in the social realm, or that which is characterized by logically consistent deduction from irrefutable a priori truth), I'm convinced, will arrive at the NAP.

    But that's a lot to ask from most people. Better to rely on old and good custom, the right of self determination, and decentralization of political power.

    1. “Reason is all about argumentation and consensual agreement of how things either are or ought to be. The object of reasoning with another is to convince.”

      I find that “reason” works much better with people with whom I share many cultural and ethical characteristics, and does not work at all with those with whom I do not share cultural and ethical characteristics.

      The chicken or the egg.

      "But that's a lot to ask from most people. Better to rely on old and good custom, the right of self-determination, and decentralization of political power."

      Precisely. The endless debates regarding the furthest corners of libertarian theory and application are a complete waste of time - 99.9% of the people will never read these, and if they do, will not understand the arguments.

      Custom, self-determination, decentralization: people “get” these. We see it playing out in spades throughout the west – not exactly as a libertopia, but as custom, self-determination, decentralization.

      In other words, libertarian theory applied.

  3. The best explanation I've ever seen on the origins of European Justice is Foucaults Knowledge / Power 1972 of which the following is a snippet:
    In the Middle Ages there was a change from the court of arbitration (to which cases of dispute were taken by mutual consent, to conclude some dispute or some private battle, and which was in no way a permanent repository of power) to a set of stable, well defined institutions, which had the authority to intervene and which were based on political power (or at any rate were under its control). This change was accomplished in conjunction with two underlying processes. The first was the fiscalisation of the judicial system: by means of fines, confiscations, distraints, by granting expenses and all sorts of allowances, operating the judicial system became profitable; after the breakdown of the Carolingian state the judicial system became, in the hands of the nobles, not only an instrument of appropriation - a means of coercion - but a direct source of revenue; it produced an income over and above feudal rent, or rather it became an aspect of feudal rent. To be a judge was to have a source of income, it was property. Judgeships became a form of wealth which could be exchanged, circulated, which were sold or inherited as part of, or sometimes separately from, fiefs. They became an integral part of the circulation of wealth and of the feudal levy. For those who owned them they constituted rights (in addition to those of quit-rent, mortmain, tithe, tonnage, banalites, etc.); and for those who came under their jurisdiction they amounted to a kind of taxation which was not systematised but to which it was nevertheless in certain cases certainly necessary to submit. The archaic operation of the judicial system had become inverted: one could say that in earlier times justice was a right for those to whom it was applied (the right to demand justice when the disputants agreed to do so) and a duty for those who made the judgments (the obligation to exercise their prestige, their authority, their wisdom, their politico-religious power). It was to become from this point on a (lucrative) right for those in power, and a (costly) obligation for those who had to submit to it. At this point we can see the convergence with the second of the processes which I mentioned earlier: the increasing link between the judicial system and armed forc~. To replace private wars by a compulsory and lucrative judicial system, to impose a judicial system where one isat one and the same time- judge, party to the dispute and tax collector, instead of a system of deals and settlements, to impose a judicial system which secures, guarantees and increases by significant amounts the levy on the product of labour, all this implies the availability of the power of constraint. It could not be imposed without armed force: wherever a feudal lord disposed of sufficient military power to enforce his 'peace' it was possible for him to impose juridical and fiscal levies. Having become a source of income, judgeships developed in the direction of the division of private property. But supported by the force of arms they developed in the direction of its ever increasing concentration. This dual development led to the 'classical' result: when, during the fourteenth century the feudal lords . were faced with the great peasant and urban revolts, they sought the support of a centralised power, army and taxation system: and in this emergency there arose, together with the provincial High Courts, the King's Procurators, official prosecutions, legislation against beggars, vagabonds, idlers, and before long the early rudimentary forms of police and a centralised judicial system. This was an embryonic state judicial apparatus which was superimposed upon, duplicated and controlled the feudal judges and their fiscal rights, but which allowed them to continue to function.

  4. Don colacho's aphorism #2,949:
    Where the law is not customary law, it is easily turned into a mere political weapon.

  5. Hi BM,

    This might be what you're looking for: Convivial Order (applied Natural Law).

    From: The Lawful and the Legal

    Convivial Order

    "[..] it leads us back to a confusion of the lawful and the legal, and into a confusion of two radically distinct concepts of society. As noted already, the latter confusion is all the more likely for speakers of English (or Latin or French), who have only the word 'society' to express both concepts. Speakers of the Dutch language do not have this problem: they can easily distinguish between "een samenleving" (literally: a living-together or symbiosis) and "een maatschappij" (literally: a society or company)."

    "A society-as-symbiosis (samenleving) is not some well-defined, organised group, but precisely that condition of lawful co-existence that we have been discussing all along. It is perhaps best described as the way of life of those who live as free persons among their likes. Thus, society-as-symbiosis is coextensive with objective ius or law. It is a horizontal society without hierarchical structure. It is also an inclusive society without a formal organisation based on certified membership. Anyone who accepts to live according to law is, by that fact alone, in society, anyone who does not is, by that fact alone, an outlaw, i.e; one who is outside society."


    "Natural law refers to the natural, physical world of living human beings. Moreover, “law” should not, in this connection, be understood in its now-dominant sense of a command, directive, or rule (cf. the Latin lex). Instead, it is to be understood in its much more profound sense of order, especially the order or bond of conviviality that has its natural foundation in the plurality and diversity of distinct and separate persons. Thus, law is semantically related to the Latin ius, which refers to a bond arising out of solemn speech (iurare, to make a personal commitment to or covenant with another), and which presupposes the separateness and independence of persons. In that sense, law stands in opposition to the Old English orlaeg, fate, the inevitable disappearance of order, as in war."

    "For reasons of clarity, I prefer to speak of the order of conviviality rather than the social order, because the English word “society” and its derivatives (“social,” “sociable,” “socialist,” “socialisation,” and the like) are highly ambiguous and tend to evoke the image of an organisation or company (Dutch: maatschappij) with a common purpose toward which all of its members are supposed to work [..]"