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.

Blech.

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.

Conclusion

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.