Column by new Root Striker Kris Borer.
Exclusive to STR
The guiding star of libertarianism is the Non-Aggression Principle. Regardless, in his recent article on libertarianism.org, Matt Zwolinski attacks the NAP and Rothbard's deontological approach to ethics. Zwolinski makes many errors, but his major mistake is that he does not know what the NAP is. Small wonder that he cannot navigate the turbulent waters of ethical analysis. Zwolinski admits that he is merely raising tired, old arguments, but his article can still be valuable. It may serve as an example of how a confused understanding of libertarianism can lead to ridiculous conclusions. Then other libertarian thinkers will see how important it is to have a solid knowledge of liberty, lest they become similarly lost at sea.
In order to understand why Zolinski is off course, let's first correctly define the NAP. Libertarianism is an ethical, or conflict resolution, system. The NAP is the libertarian conflict resolution rule. It resolves conflicts in favor of innocent people and against those who cause conflict. It can be stated simply: don't cause conflict. Of course, conflict needs to be defined precisely, but that is easy to do using praxeology.
For those familiar with praxeology, recall that every person engages in purposeful behavior which is also called human action. Everything a person chooses to do is human action: going for a walk, saving money for a house, sleeping. Things like fainting and involuntary reflexes are not. Conflict is when people choose to behave in ways that are mutually exclusive. For example, if A is trying to eat an apple and B is trying to take away the apple, there is a conflict. It may be that B is a thief who wants to steal A's apple, or it may be that A is a thief who already stole B's apple and B is simply trying to get it back. In either case, a conflict exists and the NAP assigns blame for the conflict to whoever caused it.
Note that the NAP does not need to be defined in terms of physical violence, threats, property, self ownership, etc. It can be stated directly in terms of the more fundamental ideas of human action. If A and B are having a boxing match, that can involve threats, physical violence, property damage, etc. Yet, libertarianism does not prohibit boxing. Why? Because boxing is what both people want to do. Their actions are compatible, so there is no conflict. On the other hand, someone could violate the NAP without doing anything at all just by sleeping on the job.
The exact definition of the NAP is usually not that important. Rough approximations like, "do not initiate violence or the threat of violence against the people or property" provide enough intuition for most of the problems that people encounter in their daily lives. However, for intellectuals like Zwolinski, the definition of the NAP is critical. Even a small mischaracterization can lead to wildly incorrect conclusions. Worse, these errors can have serious consequences. The systems that intellectuals develop are internalized by others and used in the real world. History is rife with societies devastated by intellectual error.
To steer Zwolinski in the right direction, let's examine how the NAP, properly understood, resolves all of his concerns.
1. Does the NAP prohibit all pollution?
It depends on how you define pollution. The NAP only prohibits pollution if it causes conflict. As Rothbard says in "Law, Property Rights and Air Pollution":
"If A is causing pollution of B's air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B's property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type."
So the NAP does not imply an absolute position on pollution, just like there is no absolute rule about killing people. Killing someone could be murder, self defense or assisted suicide. Pollution is the same way -- sometimes polluters violate the NAP and should be stopped. However, libertarians don't fret over the carbon dioxide that they exhale, and some libertarians even enjoy smoking. Should libertarians give up marijuana, breathing and cease all human interaction? Not if they understand the NAP.
2. Does the NAP lead to objectively bad outcomes?
Some people worry that there might come a time when it would be really, really convenient to steal something or murder someone. Unfortunately for them, the NAP prohibits crime no matter what. However, the NAP never puts a libertarian in a situation where he would need to choose an objectively worse outcome. This is because whenever the NAP is violated, somebody is made worse off. Since utility is not interpersonally comparable, there is no objective way to say that all the wonderful consequences of a crime can offset the pain and suffering of the victim. Not only does the NAP not force libertarians into choosing bad outcomes, it turns out that following the NAP is the only way to guarantee that what you are doing is a net positive.
3. Does the NAP fail to account for risk?
The NAP says not to cause conflict. It does not prohibit human action that merely risks causing conflict. This is good because every human action risks violating the NAP, so a prohibition on risk would be a prohibition on life itself. That said, the details of how to determine if a risky behavior is considered criminal is not something that is specified in the NAP. A libertarian has to use understanding, in the Misesian sense, to determine what type of risky actions cause conflict. This is not the kind of question that has a simple answer, because the variety of possible situations is endless. Throwing daggers at someone is risky and would normally be a NAP violation, but not in the circus.
4. Does the NAP ignore fraud?
Zwolinski thinks that deontological libertarianism does not account for fraud. The reason he thinks this is because fraud is not accounted for in his definition of the NAP. For someone who is so focused on Rothbard, it seems rather strange that he ignores the things that Rothbard says about fraud. In the twelfth chapter of the Ethics of Liberty, Rothbard says, "Defensive violence, therefore, must be confined to resisting invasive acts against person or property. But such invasion may include two corollaries to actual physical aggression: intimidation, or a direct threat of physical violence; and fraud, which involves the appropriation of someone else's property without his consent, and is therefore "implicit theft." Or in chapter 19 where he says, "Under our proposed theory would fraud be actionable at law? Yes, because fraud is failure to fulfill a voluntarily agreed upon transfer of property, and is therefore implicit theft."
Perhaps it would be best to read Rothbard's work before claiming to have a better understanding of it than the author himself.
5. Does the NAP depend on the definition of property?
Zwolinski defines the NAP in terms of property but, as explained above, it is not necessary to do so.
6. Does the NAP allow for infanticide?
Zwolinski thinks that the NAP allows a parent to murder their child by starvation. In chapter 14 of the Ethics of Liberty, Rothbard says that a parent would not be required to feed a child but that he "may not murder or mutilate his child, and the law properly outlaws a parent from doing so."
If that's not enough, Walter Block fleshes out Rothbard's position in his article, "Libertarianism, Positive Obligations, Children's Rights and Property Abandonment: Children's Rights":
"First, suppose that the parents are willing to notify others of their impending abandonment of their baby, but set up roadblocks against anyone else taking over care of it. For example, they announce to the world that they are trying to set up a reductio to embarrass the libertarian philosophy. To this end they are going to leave the baby in his crib, and not feed or diaper him. To those who wish to adopt this baby they say: 'The baby is in his crib. The crib is in our house. This house is private property: you cannot have access to it'. Picture hundreds of would be caretakers surrounding these parent's house, all of them willing to adopt the baby, but she insists, based upon her property rights in this dwelling, that all of them stay out while the baby dies of starvation. Does this reductio succeed? Not at all. Apart from the pragmatic fact that most others in society would severely boycott such a couple, there is the point that they would be guilty of forestalling the homesteading of property (e.g. the baby) which is no longer owned. This would be in direct and blatant contradiction to the libertarian homesteading theory which oversees the bringing in to ownership of virgin territory, not the shielding of it from those who wish to homestead it. Ordinarily, in the case of forestalling new ownership of land which has been abandoned, not allowing newcomers on to one's own property (the donut) for this purpose would be equivalent to land theft, and punished accordingly. But in the present case what is being shielded from homesteading is not land, but rather a baby. Thus it would be equivalent to murder, and those responsible for be treated very severely."
It is understandable that Zwolinski is concerned about the above misconceptions. The doldrums that he is in are unpleasant and would make anyone question their premises. However, his conviction that deontological libertarianism has led him there is completely unfounded.