Why I am not Quite a Libertarian, revisited

I have been asked in condescending words what part of the natural law proposed by the Libertarians I do not understand. The Libertarians are natural-law theorists who have an elegantly simple axiom of legal principle: whoever initiates force is in the wrong. Force is to be used only in retaliation and only against the aggressor, and then only in proportionate retaliation. It is as elegant and simple an answer as a Hobbesian saying that the only passion in the human breast is the desire to avoid violent death at the hands of others.

So what part of the axiom of non-aggression do I not understand?

1. The part that does not or cannot distinguish between legitimate uses of force and illegitimate.

This is the part that concludes that policemen are pirates because they "initiate" force — the part where when asked to define whether collecting lawful and non-abusive taxation for clearly understood public good, where there is no hint of peculation or corruption, leads one to conclude that the taxman (who pays the lawman to catch the robberman) is one and the same as a robberman, and only Murry Rothbard is wise and clever and smart enough to see this truth.

When one is led to a conclusion that requires the entire human race except for oneself, and a few other like-minded persons of no accomplishment, to be not merely deceived, but grossly deceived, and on a matter of vital interest to them, then any person not drunk on an excess of self esteem should strongly suspect that his conclusion follows from premises that are false.

How may law cases have you sat through, all the way from Voir Dire to sentencing? Did you notice the care with which all parties, jurors, judge, attorneys for both sides, examine every evidence and every argument to exhaustive detail, discovering the motive for the acts, and so on?

If every law case could be solved merely by determining who struck first, there would be no need for courts of law or our elaborate procedures. Courts of law and their elaborate procedures did not spring up for reasons of mere stupidity, or cruelty, or to perpetrate an injustice that only you and your enlightened circle are privileged enough to see.

The guy on the defensive is always right? Always, always, always? It is always clear what point of time counts as first?

While the man on the defensive certainly deserves major consideration for being the innocent party, it is not the only consideration. If I trespass onto a car lot to retrieve my car, and the lot owner sets his dog on me, is the dog the point of initiation, or the trespass? What if my car was wrongfully converted, and not from my hands, but the hand of a bailee to whom I have entrusted it? Does that change the moral calculus?

2. The part that defines injury.

What if a man insults my wife? May I punch him in the nose? Does a loss of honor count as an injury? No? What if someone steals my design for Cordlandt Homes? May I blow them to smithereens–even thought the property belongs to another?

Suppose your father owns a tract of land in the western territory. He does nothing to improve it. A man crosses onto your father’s land, and for seven or twelve years openly possesses it. He drains swamps and digs wells and opens a silver mine. After another ten years, your father dies, and his deed of title comes into your possession. You go onto the land to inspect, and find a fine house and a barn, not to mention an ice sculpture of a swan in the front lawn. You go to the house and open the front door. A woman with a shotgun confronts you and orders you off the property. Fortunately, you have a phaser weapon which can annihilate her and and bullets or buckshot coming from the gun. Are you within your rights to shoot her if she brandishes the shotgun? What if she is holdingbut not pointing it? What if you have a clear line of safe retreat? What if she has a color of a claim to defense of property, on the grounds of adverse possession?

You might not like the answers the common law has evolved and debated for all these questions, but referring to that law leads to clearer and more predictable outcomes than attempting to "re-invent the wheel" from pure abstract principles in each and every novel situation.

3. The part that defines "initiate."

Sometimes the question of fact is unclear. Take the Middle East problem. Who initiated the violence? The Palestinians, for committing acts of terror against the Jews? The Jews, for moving into a land at British invitation after WWII? The British, for conquering the land from the Turks? The Turks, for invading in the 7th century? The Romans, for invading in the 1st Century? The Greeks, Hittites, Persians, and Babylonians for invading in the Fifth, Sixth, Tenths and Twelfth Centuries B.C.? The Caananites? The Moabites? Abraham? Noah? Adam? Vandal Savage of the Blood People Tribe of A.D. Five Million? 

You are the one who merely ignores the concept of legitimacy of violence, who says policemen and pirates, and says that anyone who avenging an injury is legitimate, and anyone who initiates force is illegitimate. The doctrine fits many cases, perhaps most cases, but not all, and therefore human beings, over the centuries, have evolved wise laws, not in the abstract but in the real world, to deal with those cases and exceptions to those cases.

4. The part that takes no account of reality.

Let me use the same example I used before. A village of farmers are about to be attacked by 40 bandits. The central government has broken down, so they must save themselves if at all. With nothing but rice as a currency, the villagers, at the request (or order) of the oldest and most respected member of the village, has hired seven samurai to organize a defense.

The situation of the terrain is such that the best and most defensible spot is the canal. There are three houses on the far side of the canal, which could be used by the enemy for concealment and cover. Military prudence suggests those three houses be burned, so that they will not give an advantage to the enemy.

The three owners of those houses, hearing this decision, break ranks, throw down their spears, and declare that they will go defend their houses themselves, separately, without helping or being helped by the village. It just so happens to be the case that three villagers against forty bandits cannot possibly prevail. Also, the odds against the village are so steep that to allow three men to break ranks endangers the discipline upon which the only slender hope of the villagers rest.

Kambei, leader of the Samurai, draws his sword against those three and chases them back into ranks, and upbraids them for their selfishness.

By the axiom of the Libartarians, his action is indefensible. By any stretch of common sense, his action is laudable, and is not only excused, it is demanded by his mission to save the villagers, each and every one of them, from an overpowering and real enemy. Hence, Libertarian logic in this limited case leads to a false conclusion, nay, an utterly false conclusion: not merely untrue, but the exact opposite of truth.

I suppose we could invent a legal fiction by which the villagers are held each severally to have authorized the old man to act for them, and the old man’s hiring of the samurai acts as consent to any discipline, up to an including corporal and capital punishment, needed to maintain order among the militia — but this is the very type of ‘social contract’ legal fiction Libertarians rightly distrust. These are illiterate peasants. They did not sign and contract nor perform any ritual act understood in an illiterate society (such as placing your palm under a lord’s heel) to show fealty or agreement. Kambei was not elected to be leader; it was merely so understood by the consensus of the village opinion, and the obvious facts of the case. No specific terms relating to militia discipline were discussed: they were merely understood, because the facts of the matter is plain.

What makes Kambei chasing a deserter back into ranks different from the 40 bandits coming to loot the village of its harvest, rape the women, kill the men? By Libertarian logic, there is NO difference. Since the difference is clear, ergo there must be something wrong with the Libertarian axiom.

What is wrong?

  • I suggest that the axiom is too limited, narrow, and does not cover all the cases. 
  • I suggest that even a limited government that stayed on the gold standard, did not meddle in the economy, privatized all highways and currency printing, and enforced no victimless crime laws would still need to collect taxes.

No taxes means no government. Attempts to fund governments by user fees is a tax. Attempts to fund governments by voluntary contributions was attempted during the years of the Articles of Confederation, and failed.  If pro-limited-government theory leads to a conclusion that then arrives at there being no government, then the theory is flawed.