Sunday, June 2, 2019

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?

Frank van Dun has offered an examination of just this: are rules which are strictly based on private property sufficient for liberty?  I have considered two of his posts on this question, here and here.

Now, to the main point: I have been stewing on this intersection of natural law, Christian ethics, and libertarianism.  This questioning by Rozeff has been valuable in prompting me to continue expanding on this.

Do RB have obligations outside of libertarian law? If so, where do they come from? If so, does that mean libertarian law is defective or needs to be supplemented?

Yes, they have obligations; that’s my opinion, not a standard libertarian view. They come from rules of the “human” road, and I’m unsure where they come from and how to integrate them with property ownership. But we typically know right from wrong in many situations.

Rozeff is quite correct; this isn’t a standard libertarian view, not when one considers application based strictly on the non-aggression principle and based on property rights.  But is it accurate to say that “…we typically know right from wrong in many situations”?

There is a most wonderful comment that I was hoping to have a chance to highlight in a post.  Well, here it is:

Tony May 26, 2019 at 6:41 AM

“'Reason alone' has not led people to agree about morality or meaning any more than 'scripture alone' did."

Author Ross Douthat appeared on *Real Time with Bill Maher* (yeah, I know) in 2012 to discuss the role of religion in modern life. In the course of their discussion, Douthat pointed out that the very idea of "universal human rights" is a metaphysical concept and, in some sense, religious.

Maher dismissed Douthat's observation. "Rights," he countered, "are pretty much common sense."

I suggest Maher invite Cato's Tom Palmer, the Mises Institute's Walter Block, and internet commentator Stefan Molyneux on his show. All four have called themselves libertarian. All four are unbelievers. All four gush common sense. Maher and his panelists should come to substantial agreement on that lofty "universal human rights" subject, no?

Normally, you couldn't pay me to watch that supercilious twit. But I would pay to watch that exchange.

"All human conflict is ultimately theological."

Henry Edward Manning


So, on to Rozeff’s most important statement regarding having “obligations outside of libertarian law”:

…I’m unsure where they come from and how to integrate them with property ownership.

The answer will be found in natural law in the Aristotelian – Thomistic (AT) tradition.  I think I am on quite safe ground to suggest that many libertarians base their deduced natural rights from this natural law (and many non-libertarians who are in search of proper obligations and ethics do so as well), albeit almost as many want to divorce God who was absolutely in evidence in Thomas’s development of Aristotle’s concepts – Thomas was surrounded by this God, he was swimming in this tradition. 

And I will argue: as God is and has been always present everywhere, and as man is always in search of God, both Aristotle and other philosophers around the world have been and are – whether they know it (or admit it) or not – in search of Him. 

In any case, since I write in – and since most if not all of my regular readers live in – that portion of the world that was founded via and grounded in this Christian tradition (and because culture matters), this is the context that is relevant.  Yet every major culture and religion was in search of the Golden Rule.  And it is the Golden Rule that Rozeff is searching for.

The conversation proposed by Tony represents the reality of the conversation when divorced from God.  It will get nowhere, because men are appealing to the authority of other men.  Who will decide?  Only when this authority is recognized as being beyond the control of man can any rational, or reasonable, conversation be held.

“Reason alone” gives us over 50 million induced abortions per year.  Where does this sit in an ethical context?  (Here is a sampling of the ethical context offered to us by the market on this holocaust.)  We find it ethical to murder the most vulnerable and most innocent, yet somehow we will find ethics through reason alone?  And from this, liberty will spring forth? 

If the most vulnerable and innocent are subject to such “reason,” it seems to me that liberty for the rest of us is reasonably found to be unethical.  Oh…wait…I have just described the ethical context of society today.


Now my real work begins: Aristotle passes through Aquinas passes through the School of Salamanca passes through CS Lewis.  There are many libertarians – and very prominent ones – that buy into this 100%, as long as you don’t bring up the idea of God.  This is certainly true of those known as the New Atheists (libertarian or not).  They all offer a road that leads to a dead end…literally.

I think Edward Feser had this right, albeit his views on method of enforcement and punishment offer a road to hell on earth (he finds the solution in the state).  In my view, natural law grounded in Christian ethics can inform proper behavior in society – behavior necessary to sustain liberty and freedom; the non-aggression principle can help to inform regarding those violations of natural law that are deserving of physical punishment.

How deep do I want to dive into this?  I am not sure.  How qualified am I to dive into this?  Not at all.  But I believe that I have to do something.


  1. Looking up Good Samaritan laws on Wikipedia, I came across this:

    "A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party who could face potential injury or death without being rescued. In common law systems, it is rarely formalized in statutes which would bring the penalty of law down upon those who fail to rescue. This does not necessarily obviate a moral duty to rescue: though law is binding and carries government-authorized sanctions and awarded civil penalties, there are also separate ethical arguments for a duty to rescue that may prevail even where law does not punish failure to rescue."

    I suppose ethics and morality, as conceptualized in any society, are the ideas that lead to codification of written law. Apparently morality can be legislated after all, but is it wise? Peg

  2. Hmmm. A positive duty to be truthful and honest?

  3. This is an excellent post, particularly the last two paragraphs of the conclusion.

    "How deep do I want to dive into this? I am not sure. How qualified am I to dive into this? Not at all. But I believe that I have to do something."

    I hope you dive in deep. This may sound hyperbolic, but I believe the work you're doing on this is as important to the future of liberty as what Mises and Rothbard did.

    1. I am not sure what to say about this. Thank you. have pushed me to start.

  4. Bionic wrote: "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'?"

    The market cannot provide ethics because the ethics of an individual is one of the things that create a market. Having the market create ethics would be the same as having the market create value - I think that there are few instances of the market attempting this that worked out very well.

    Bionic wrote: "The conversation proposed by Tony represents the reality of the conversation when divorced from God. It will get nowhere, because men are appealing to the authority of other men. Who will decide? Only when this authority is recognized as being beyond the control of man can any rational, or reasonable, conversation be held."

    I believe that this single statement pretty much knocks it out of the park. When there is nothing greater than man to give authority, the only authority is man - and that is 7+ billion different authorities. How would a hierarchy be established? Debate[*snort*]? Might makes right? Total war with annihilation of the losers? Doesn't seem to be a very libertarian path to me.

  5. Great post. I feel like you're picking up momentum on this. The ethical, logical, and scientific foundations of your arguments are undeniable. I'm convinced, even on strictly libertarian grounds that abortion is wrong, since it is a violation of the non-aggression principle. It's a fatal act of violence against one who has committed no aggression (or violence). It could also be viewed as a breach of an unspoken contract, same as that of the woman rescued and then thrown overboard.

    It is hard for me to admit where Rothbard is logically or ethically wrong, but here is certainly such a case. I've been convinced of this for about 4 years now. (I first encountered Rothbard's work about 6 years ago. I was soon thereafter a libertarian anarchist who condoned the legality of abortion but recognized its moral failings.) I'm still not convinced of the justice in punishing women (and men) with violence for this but am favorable to local authorities making their own decisions regarding enforcement and punishment.

    50 million. A year. Jesus help us.

  6. From an emotional standpoint as a woman who has borne children, nor was ever faced with an unwanted pregnancy where a decision might have been called for, after my first child was placed in my arms, I immediately felt a revulsion to the idea that anyone could put their own child to death. Possibly I would have felt otherwise if I had yet to birth my sons. I also have doubts about punishment for those who choose that path. Moral suasion seems the best way to discourage abortion, but that ship may have sailed (continuing with Rozeff's ship metaphor). Peg

    1. Exactly. Abortion sounds a medical procedure, until you hold your baby and look into those brand new eyes and feel the immense weight of responsibility for the first time as a parent.

  7. "We find it ethical to murder the most vulnerable and most innocent, yet somehow we will find ethics through reason alone? And from this, liberty will spring forth?" - BM

    I have a guilty pleasure of getting email notifications of new posts at media outlets online whose content I know I will (the vast majority of the time) not agree with. 'Know your enemy' I guess is my motivation.

    The other day I got notified of a post on 'Medium' entitled "What My Partner’s Abortion Taught Me: Abortion rights are not just a women’s issue. More men should say so" by Christopher Keelty. This caught my attention because it seemed like it was going to be some guy reappraising his positive views on abortion, after having witnessed it first hand, with his own baby, and on a predominantly leftist website.

    So I read it, and boy was I wrong. It turns out, that this guy was basically saying that his partner's (partner??? gotta be gender neutral I suppose) abortion improved not only her life, but his life too! After all, a baby is a lot of work and if she had carried to term, they would have both had to "revis[e their] lives to accommodate the child [they] never wanted" and since she had an abortion, he could "continue pursuing the personal and professional life [he] wanted."

    He further states that "while millions of women have benefited from safe, legal abortion, so have millions of men like me, though many of us might not know it." Win win! What's unreasonable about that? Hey it's safe!

    How about the people who were aborted? Did they benefit? Was it safe for them? I suppose its perfectly democratic and utilitarian that one should suffer for the happiness of two others (never mind when two suffer and only one is happy, as is the case when a man's child is destroyed by the mother without his consent or knowledge.)

    Without a grounding in faith it seems you cannot trust in reason to provide or maintain an ethical framework for society.

    "You can only find truth with logic if you have already found truth without it." - G.K. Chesterton

    The problem isn't that it is impossible for reason to come up with the right ethical standards. It can. This is where I tripped up in the past. The real problem under the 'reign of reason' is as you've said: who's reason shall reign?

    1. "...abortion improved not only her life, but his life too!"

      We look back with disgust at ancient civilizations that practiced child sacrifice - many damn God for the episode with Abraham and Isaac, even though Isaac was NOT sacrificed.

      Abortion is the modern world's child sacrifice - the child is sacrificed and the lives of those who killed him are (at least superficially) improved.

  8. "Only when this authority is recognized as being beyond the control of man can any rational, or reasonable, conversation be held." - BM

    Of course not all 'supra-rational' or revelatory traditions are equal. Not all faiths can be counted on to provide an ethical basis for freedom.

    For instance, Jane Eisner of the Jewish American magazine "Forward", states that "in enacting a law that would make performing virtually all abortions a crime, the state of Alabama is impinging on my religious freedom as a Jew."

    Abortion is considered a religious right for Jews? This is news to me.

    "Sources in the Talmud indicate that prior to 40 days of gestation, the fetus has an even more limited legal status, with one Talmudic authority asserting that prior to 40 days the fetus is “mere water.”" - Eisner

    She also reports that in regards to the killing of the unborn, "the [Jewish] tradition allows for a surprising and compassionate flexibility."

    "Why don’t more progressive and moderate religious groups employ faith-based language to protect abortion rights? There are some who do — the Religious Coalition for Reproductive Rights represents an array of interfaith leaders nationally and in many state chapters." - Eisner

    Faith-based language. To protect abortion rights. This lady's religion must be the margarine of faith. I can't believe it's not murder! (Gauche I know, sorry)

    "But their voices tend to be drowned out by the Catholic Church and Protestant evangelicals who have particular political sway in the mostly Southern states where abortion rights are most restricted." - Eisner

    Those dang 'Medieval' and 'Provincial' Southern Christians! Why can't they just get on board with the 'Modern' and 'Progressive' termination of the unborn like 91% of Jewish women?

    I've heard that it was the Jewish community that was behind abortion rights in America. I had thought that was a nasty rumor. Now I wouldn't be surprised.

    "Consider that in Israel, where the Orthodox rabbinate has inordinate power, abortion is legal and often paid for by the state. How’s that for Judeo-Christian values?" - Eisner

    So much the worse for Judeo-Christian values.

    1. Maybe this is why American evangelicals are praying for Armageddon and the total destruction of Israel?

      Just kidding....