Man, as anything, has a nature. “The natural law, then, elucidates what is best for man- what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature” (12). Man is given the faculty of reason. This enables him to discover the principles of natural law. As a human being, Rothbard shares his knowledge of these principles, but I am not sure that everybody will agree on their natural character.
“Natural rights are those "which, by fair deduction from the present physical, moral, social, religious characteristics of man, he must be invested with ... in order to fulfill the ends to which his nature calls him."(23).
Natural rights are in essence property rights, property of oneself and property of goods obtained following natural rules. “The concept of "rights" only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard.” (113).
Natural rights are not the only way to deal with the “good” in social philosophy. The main alternative is eudemonism, what Rothbard calls “utilitarianism”. A representative of this school, Ludwig von Mises, writes: “But the teachings of utilitarian philosophy and classical economics have nothing at all to do with the doctrine of natural right. With them the only point that matters is social utility. They recommend popular government, private property, tolerance, and freedom not because they are natural and just, but because they are beneficial.” (**)
Rothbard reproaches to Hayek that he seems to locate the origin of rights in the government. I am not sure that it is really Hayek’s thought, but the point fundamentally is: for who does not believe in natural law, rights are necessarily a social construction, of which the political constitution is an emanation by the way of a historical compromise.
Rothbard builds his social philosophy on the concept of state of nature. In fact, an assumed state of nature. The figure of his state of nature is Robinson Crusoe, a man living in full autonomy and liberty. But, in real life, from the point of view of anthropology, has ever a man, in normal conditions, been a Robinson Crusoe? Crusoe becomes a social being after having met Friday, with whom, in full mutual autonomy, he engages in exchange. But actual man is put in social relations from his birth and even before. Various philosophers have conceived of different states of nature: Rousseau, Locke, Hobbes. None of these states has ever existed.
Rothbard’s Crusoe (i.e., each man) discovers the world: “he learns the natural laws of the way things behave in the world (…) (he) discovers the primordial natural fact of his freedom.” (31). “Absolute freedom, then, need not be lost as the price we must pay for the advent of civilization; men are born free…” (41). This idea seems nonsensical: man is born and necessarily lives in a mixture of freedom and constraint.
So, self-ownership is the base of a good society. The only alternative (the only one which respects the condition of universality) is communism, where everybody is a partial owner of everybody. “Can we picture a world in which no man is free to take any action whatsoever without prior approval by everyone else in society? Clearly no man would be able to do anything, and the human race would quickly perish.” (46). Why imagine that each of us would have to ask permission to do anything to millions of other persons individually, whereas it would be so easy to simply apply the law, which we are supposed to know et that has been decided by the majority vote?
The explanation of this oddness is that Rothbard, as an anarchist, hates the State. It is to be abolished. Laws can be made without a State: the best laws originate from custom and from judgements by courts outside the State. Two main activities of the State disappear in the “free society”: income redistribution and public morality. Throughout his book, Rothbard repeats that the State is a gang and that taxation is theft.
Man is free: the only limit is not to make use of violence against fellow-men and their properties. But Rothbard insists on the distinction between aggression and defensive violence, which is legitimate. Self-defence is a corollary of property right and self-justice is a corollary of self-defence. But the avenger must proportionate the punishment to the seriousness of the affront. Rothbard advocates “a tooth (or two teeth) for a tooth” (91). Why two teeth? To compensate the victim for the trouble to be aggressed. And beside the punishment, there must be restitution of the stolen object. If necessary, the criminal will be forced to work for the victim: “the ideal situation, then, puts the criminal frankly into a state of enslavement to his victim” (86).
As we see, the aggression against a person or property, and the retaliation, are a private business between the victim and the aggressor. Society is not implied. The thief has no debt towards society, only towards his victim. The State is commonly endowed with the monopoly of the use of coercion and force. In the “free society”, there is no State: people are responsible of the punishment of their aggressor. Possibly, they would rather pay an ad hoc agency to do the job. These agencies are private firms specialising in protection, which operate on a competitive market. For judicial security, the victim or his agency may resort to an arbitrage court (private, naturally) to determine the penalty, because a punishment out of proportion is considered as a new aggression.
Robert Nozick, also a libertarian but less extremist than Rothbard, advocates what he calls “the minimal State”, a State responsible only of justice and police. He has imagined a scenario in which the competitive system of protection agencies would evolve spontaneously towards the minimal State. Rothbard has no difficulty to prove that such a spontaneous movement is impossible.
Which property is legitimate? Rothbard follows Locke’s theory. Man becomes rightfully the owner of the product of his labour which is simply an extension of his self. And unowned land and natural resources become the legitimate property of the pioneer, the homesteader who is the first to use them: “The homesteader-just as the sculptor, or miner-has transformed the nature-given soil by his labor and his personality. The homesteader is just as much a "producer" as the others, and therefore just as legitimately the owner of his property.” (49). The soil undergoes transubstantiation. The Lockean passage from produce’s property to land’s property is of the kind of alchemist ‘s magic. There is also a Lockean proviso which limits the legitimate property to the surface that our man can actually work. Which Rothbard admits, but he adds that ownership is kept for eternity, even if the owner let afterwards his land unused. Naturally, in a libertarian perspective, gift and bequest transfer legitimately ownership. Rothbard recognises that there has been much land theft in history; if it is impossible to identify the original proprietor’s heirs, the present user benefits of the presumption of legitimacy. Well, think of Europe’s history: almost 100% of the land would be legitimated by presumption.
Nozick had modified Locke’s proviso in this way: legitimacy of land first appropriation is conditioned by the offer of compensation to other people who are made worse off. He adds that the monopoly-ownership of a vital resource (e.g., a unique spring of water) is never legitimate. Rothbard does not agree and we easily understand why: “In fact, Locke's (e.n.: Nozick’s) proviso may lead to the outlawry of all private ownership of land, since one can always say that the reduction of available land leaves everyone else, who could have appropriated the land, worse off.” (244). True! Rothbard shows no sympathy: “If latecomers are worse off, well then that is their proper assumption of risk in this free and uncertain world.” And he confirms the divine right of the monopolist of a spring to choose if he supplies water, to whom, and at what conditions.
Let us now examine how owner’s freedom applies in some specific situations. Streets are presently public ownership: the political authority has to manage such choices as priority to demonstrators or to traffic. Necessarily arbitrary, declares Rothbard. In the “free society”, streets belong to private firms. These ones take the decisions, but why is it no more arbitrary? According to Rothbard, the street’s owner has the right to prevent entry on his property to whom he wishes.
In the “free society”, human rights are extended. So, you get the right to disseminate all the information you know about other persons, without concern for their privacy; you have even the right of calumny. And the right to blackmail too. Nozick regards blackmail as belonging to the category of “risky non-productive actions”, a category which may possibly be prohibited. Rothbard contests the non-productivity of blackmail: “we must join modern economic theory in labelling all voluntary exchanges as productive.” (249). Under the reign of Rothbard-like liberty, it is not admissible that risky behaviour be regulated or outlawed. If you live in an apartment in a building and the owner of the apartment next to yours stores explosives, it is his right.
Nobody has obligations of any kind towards anybody else (except non-aggression). Even parents have no obligations towards their children. In the free society, there will exist a flourishing market of children where unmotivated parents sell their children to candidates for adoption. And the free society will decree no obligations such as compulsory school attendance or child labour prohibition.
Rothbard asks “Would bankruptcy laws be permissible in a libertarian legal system?” and answers “Clearly not, for the bankruptcy laws compel the discharge of a debtor's voluntarily contracted debts, and thereby invade the property rights of the creditors. (…) But even if the defaulting debtor is not able to pay, he has still stolen the property of the creditor by not making his agreed-upon delivery of the creditor's property. The function of the legal system should then be to enforce payment upon the debtor through, e.g., forced attachment of the debtor's future income for the debt plus the damages and interest on the continuing debt.” (143-144).
Rothbard thinks- I suppose- that he has designed a kind of paradise. I think it is rather hell. This results from his way of thinking. From a premise- nature has given us total freedom-, he deduces without any compromise or critical analysis, the implacable rigorous logical conclusions. But the premise is weak. We are not Robinson Crusoe.
After this negative conclusion, I must recognise some positive aspects in Rothbard’s theory. He condemns items generally accepted by right-wing circles or at least by some of them:
- Illegitimate land ownership, especially in underdeveloped countries. An agrarian reform is needed.
- Economic and political Western imperialism upon underdeveloped countries
- War and army enlistment
- Slavery. After abolition, the slaves should have been compensated, not the slave owners.
(*):Murray N. Rothbard. The Ethics of Liberty. New York University Press. 1982 . The numbers in parenthesis are the page numbers of this edition.
(**): Ludwig von Mises. Human Action. Ludwig von Mises Institute, Auburn, Alabama. 1949 . p. 174.