Natural Law as "Science"
Value in the sense of valuation or utility is purely
subjective, and decided by each individual.
But justice is the product of reason, not the passions. And
justice is the necessary support of the social order; and the social order is
necessary to man's well-being and happiness. If this is so, the norms of
justice must control and regulate the passions, and not vice versa.
Reason can be superior to the passions.
Natural Law versus Positive Law
In fact, the legal principles of any society can be
established in three alternate ways: (a) by following the traditional custom of
the tribe or community; (b) by obeying the arbitrary, ad hoc will of those who
rule the State apparatus; or (c) by the use of man’s reason in discovering the
natural law—in short, by slavish conformity to custom, by arbitrary whim, or by
use of man’s reason. These are essentially the only possible ways for
establishing positive law.
Natural Law and Natural Rights
"Every man has a property in his own person. This
nobody has any right to but himself. The labour of his body and the work of his
hands, we may say, are properly his. Whatsoever then he removes out of the
state that nature hath provided, and left it in, he hath mixed his labour with,
and joined to it something that is his own, and thereby makes it his property.
It being by him removed from the common state nature placed it in, it hath by
this labour something annexed to it that excludes the common right of other
men. For this labour being the unquestionable property of the labourer, no man
but he can have a right to what that is once joined to. . . .
He that is nourished by the acorns he picked up under an
oak, or the apples he gathered from the trees in the wood, has certainly
appropriated them to himself. Nobody can deny but the nourishment is his. I ask
then when did they begin to be his? . . . And ‘tis plain, if the first
gathering made them not his, nothing else could. That labour put a distinction
between them and common. That added something to them more than nature, the
common mother of all, had done: and so they become his private right. And will
any one say he had no right to those acorns or apples he thus appropriated,
because he had not the consent of all mankind to make them his? . . . If such a
consent as that was necessary, man had starved, notwithstanding the plenty God had
given him. We see in commons, which remain so by compact, that ‘tis the taking
part of what is common, and removing it out of the state Nature leaves it in,
whichbegins the property; without which the common is of no use." - John
Locke: Second Treatise on Government
"When we say that one has the right to do certain
things we mean this and only this, that it would be immoral for another, alone
or in combination, to stop him from doing this by the use of physical force or
the threat thereof. We do not mean that any use a man makes of his property
within the limits set forth is necessarily a moral use." - Professor James
A Sadowsky, S.J.: Private Property and Collective Ownership.
Property and Criminality
WE MAY DEFINE ANYONE who aggresses against the person or
other produced property of another as acriminal. A criminal is anyone who
initiates violence against another man and his property: anyone who uses the
coercive “political means” for the acquisition of goods and services.
We cannot simply say that the great axiomatic moral rule of
the libertarian society is the protection of property rights, period. For the
criminal has no natural right whatever to the retention of property that he has
stolen; the aggressor has no right to claim any property that he has acquired
by aggression. Therefore, we must modify or rather clarify the basic rule of
the libertarian society to say that no one has the right to aggress against the
legitimate or just property of another.
In the deepest sense, all property is “private.” For all
property belongs to, is controlled by, some individual persons or groups of
persons. If B stole a watch from A, then the watch was B’s private
“property”—was under his control and de facto ownership—so long as he was allowed
to possess and use it. Therefore, whether the watch was in the hands of A or B,
it was in private hands—in some cases, legitimate-private, in others
criminal-private, but private just the same.
The form of private property differed in the two cases, but
not the essence. Thus, the crucial question in society is not, as so many
believe, whether property should be private or governmental, but rather whether
the necessarily “private” owners are legitimate owners or criminals. For,
ultimately, there is no entity called “government”; there are only people
forming themselves into groups called “governments” and acting in a
“governmental” manner. All property is therefore always “private”; the only and
critical question is whether it should reside in the hands of criminals or of
the proper and legitimate owners. There is really only one reason for
libertarians to oppose the formation of governmental property or to call for
its divestment: the realization that the rulers of government are unjust and
criminal owners of such property.
In short, the laissez-faire utilitarian cannot simply oppose
“government” ownership and defend private; for the trouble with governmental
property is not so much that it is governmental (for what of “private”
criminals like our watch-stealer?) but that it is illegitimate, unjust, and
criminal.
The right of every individual to own his person and the
property that he has found and transformed, and therefore “created,” and the
property which he has acquired either as gifts from or in voluntary exchange
with other such transformers or “producers.” It is true that existing property
titles must be scrutinized, but the resolution of the problem is much simpler
than the question assumes. For remember always the basic principle: that all resources,
all goods, in a state of no-ownership belong properly to the first person who
finds and transforms them into a useful good (the “homestead” principle).
For any property currently claimed and used: (a) if we know
clearly that there was no criminal origin to its current title, then obviously
the current title is legitimate, just and valid; (b) if we don’t know whether
the current title had any criminal origins, but can’t find out either way, then
the hypothetically “unowned” property reverts instantaneously and justly to its
current possessor; (c) if we do know that the title is originally criminal, but
can’t find the victim or his heirs, then (cl) if the current title-holder was
not the criminal aggressor against the property, then it reverts to him justly
as the first owner of a hypothetically unowned property. But (c2) if the
current titleholder is himself the criminal or one of the criminals who stole
the property, then clearly he is properly to be deprived of it, and it then
reverts to the first man who takes it out of its unowned state and appropriates
it for his use. And finally, (d) if the current title is the result of crime,
and the victim or his heirs can be found, then the title properly reverts
immediately to the latter, without compensation to the criminal or to the other
holders of the unjust title.
We thus have a theory of the rights of property: that every
man has an absolute right to the control and ownership of his own body, and to
unused land resources that he finds and transforms. He also has the right to
give away such tangible property (though he cannot alienate control over his
own person and will) and to exchange it for the similarly derived properties of
others. Hence, all legitimate property-right derives from every man’s property
in his own person, as well as the “homesteading” principle of unowned property
rightly belonging to the first possessor.
We also have a theory of criminality: a criminal is someone
who aggresses against such property. Any criminal titles to property should be
invalidated and turned over to the victim or his heirs; if no such victims can
be found, and if the current possessor is not himself the criminal, then the
property justly reverts to the current possessor on our basic “homesteading”
principle.
Let us now see how this theory of property may be applied to
different categories of property. The simplest case, of course, is property in
persons. The fundamental axiom of libertarian theory is that each person must
be a self-owner, and that no one has the right to interfere with such
self-ownership. From this there follows immediately the total impermissibility
of property in another person. One prominent example of this sort of property
is the institution of slavery. Before 1865, for example, slavery was a “private
property” title to many persons in the United States. The fact of such private
title did not make it legitimate; on the contrary, it constituted a continuing
aggression, a continuing criminality, of the masters (and of those who helped
enforce their titles) against their slaves. For here the victims were
immediately and clearly identifiable, and the master was every day committing
aggression against his slaves. We should also point out that, as in our
hypothetical case of the king of Ruritania, utilitarianism provides no firm
basis for vacating the “property right” of a master in his slaves.
The Problem of Land Theft
We are not saying that, in order for property in
land to be valid, it must be continually in use. The only requirement is that
the land be once put into use, and thus become the property of the one who has
mixed his labor with, who imprinted the stamp of his personal energy upon, the
land. After that use, there is no more reason to disallow the land’s remaining
idle than there is to disown someone for storing his watch in a desk drawer.
The common law of adverse possession arbitrarily sets a time
span of twenty years, after which the intruder, despite his aggression against
the property of another, retains absolute ownership of the land. But our
libertarian theory holds that land needs only to be transformed once by man to
pass into private ownership. Therefore, if Green comes upon land that in any
way bears the mark of a former human use, it is his responsibility to assume
that the land is owned by someone. Any intrusion upon his land, without further
inquiry, must be done at the risk of the newcomer being an aggressor.
Of course, everyone should have the right to abandon any
property he wishes; in a libertarian society, no one can be forced to own property
which he wishes to abandon.
Punishment and Proportionality
Many people, when confronted with the libertarian legal
system, are concerned with this problem: would somebody be allowed to “take the
law into his own hands”? Would the victim, or a friend of the victim, be
allowed to exact justice personally on the criminal? The answer is, of course,
Yes, since allrights of punishment derive from the victim’s right of
self-defense. In the libertarian, purely free-market society, however, the
victim will generally find it more convenient to entrust the task to the police
and court agencies.
Knowledge, True and False
In short, as in the case of the “human right” to free
speech, there is no such thing as a right to privacy except the right to
protect one’s property from invasion. The onlyright “to privacy” is the right
to protect one’s property from being invaded by someone else. In brief, no one
has the right to burgle someone else’s home, or to wiretap someone’s phone
lines. Wiretapping is properly a crime not because of some vague and woolly
“invasion of a ‘right to privacy’,” but because it is an invasion of the
property right of the person being wiretapped.
No one can have a property right in the knowledge in someone
else’s head.
For if a man has the absolute right to disseminate knowledge
inside his head, he also has the corollary right not to disseminate that
knowledge. There is no “right to know”; there is only the right of the knower
to either disseminate his knowledge or to keep silent. Neither can any
particular profession, be it newsmen or physicians, claim any particular right
of confidentiality which is not possessed by anyone else. Rights to one’s
liberty and property must be universal.
Violation of (common law) copyright is an equivalent
violation of contract and theft of property. For suppose that Brown builds a
better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr.
Brown.” What he is then doing is selling not the entire property right in each
mousetrap, but the right to do anything with the mousetrap except to sell it or
an identical copy to someone else. The right to sell the Brown mousetrap is
retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go
ahead and sell identical mousetraps is a violation of his contract and ofthe
property right of Brown, and therefore prosecutable as theft. Hence, our theory
of property rights includes the inviolability of contractual copyright.
For everyone, as we have stated, owns his own body; he has a
property right in his own head and person. But since every man owns his own
mind, he cannot therefore own the minds of anyone else. And yet Jones’s
“reputation” is neither a physical entity nor is it something contained within
or on his own person. Jones’s “reputation” is purely a function of the
subjective attitudes and beliefs about him contained in the minds of other
people. But since these are beliefs in the minds of others, Jones can in no way
legitimately own or control them. Jones can have no property right in the
beliefs and minds of other people.
Bribery
In the case of bribes, therefore, there is nothing
illegitimate about the briber, but there is much that is illegitimate about the
bribee, the taker of the bribe. Legally, there should be a property right to
pay a bribe, but not to take one. It is only the taker of a bribe who should be
prosecuted. In contrast, liberals tend to hold the bribe-giver as somehow more
reprehensible, as in some way “corrupting” the taker. In that way they deny the
free will and the responsibility of each individual for his own actions.
The Boycott
A BOYCOTT IS AN attempt to persuade other people to have
nothing to do with some particular person or firm—either socially or in
agreeing not to purchase the firm’s product. Morally a boycott may be used for
absurd, reprehensible, laudatory, or neutral goals. It may be used, for
example, to attempt to persuade people not to buy non-union grapes or not to
buy union grapes. From our point of view, the important thing about the boycott
is that it is purely voluntary, an act of attempted persuasion, and therefore
that it is a perfectly legal and licit instrument of action.
Whether picketing as a form of advertising a boycott would
be legitimate in a free society is a far more complex question. Obviously, mass
picketing that blocked entrance or egress from a building would be criminal and
invasive of the rights of property—as would be sit-ins and sit-down strikes
that forcibly occupied the property of others.
Similarly, such employer devices as the blacklist—a form of
boycott—would be legal in the free society.
Property Rights and the Theory of Contracts
THE RIGHT OF PROPERTY implies the right to make contracts
about that property: to give it away or to exchange titles of ownership for the
property of another person. Unfortunately, many libertarians, devoted to the
right to make contracts, hold the contract itself to be an absolute, and
therefore maintain that any voluntary contract whatever must be legally
enforceable in the free society. Their error is a failure to realize that the
right to contract is strictly derivable from the right of private property, and
therefore that the only enforceable contracts (i.e., those backed by the
sanction of legal coercion) should be those where the failure of one party to
abide by the contract implies thetheft of property from the other party.
In short, a contract should only be enforceable when the
failure to fulfill it is an implicit theft of property. But this can only be
true if we hold that validly enforceable contracts only exist where title to
property has already been transferred, and therefore where the failure to abide
by the contract means that the other party’s property is retained by the
delinquent party, without the consent of the former (implicit theft). Hence,
this proper libertarian theory of enforceable contracts has been termed the
“title-transfer” theory of contracts.
The basic reason is that the only valid transfer of title of
ownership in the free society is the case where the property is, in fact and in
the nature of man, alienable by man. All physical property owned by a person is
alienable, i.e., in natural fact it can be given or transferred to the
ownership and control of another party. I can give away or sell to another
person my shoes, my house, my car, my money, etc. But there are certain vital
things which, in natural fact and in the nature of man, are inalienable, i.e.,
they cannot in fact be alienated, even voluntarily. Specifically, a person
cannot alienate his will, more particularly his control over his own mind and
body. Each man has control over his own mind and body. Each man has control
over his own will and person, and he is, if you wish, “stuck” with that
inherent and inalienable ownership. Since his will and control over his own
person are inalienable, then so also are his rights to control that person and
will. That is the ground for the famous position of the Declaration of
Independence that man’s natural rights are inalienable; that is, they cannot be
surrendered, even if the person wishes to do so.
As Williamson Evers points out, the philosophical defenses
of human rights
are founded upon the natural fact that each human is the
proprietor of his own will. To take rights like those of property and
contractual freedom that are based on a foundation of the absolute
self-ownership of the will and then to use those derived rights to destroy
their own foundation is philosophically invalid.
Defense of property titles—and only such defense—is the
business of enforcement agencies.
Under entail, a property owner could bequeath this land to
his sons and grandsons, with the proviso that no future owner could sell the
land outside the family (a deed typical of feudalism). But this would mean that
the living owners could not sell the property; they would be governed by the
dead hand of the past. But all rights to any property must be in the hands of
living, existing persons. It might be considered a moral requirement for the
descendants to keep the land in the family, but it cannot properly be
considered a legal obligation. Property rights must only be accorded to and can
only be enjoyed by the living.
Lifeboat situations
In a lifeboat situation, indeed, we apparently have a war of
all against all, and there seems at first to be no way to apply our theory of
self-ownership or of property rights. But, in the example cited, the reason is
because the property right has so far been ill-defined. For the vital question
here is: who owns the lifeboat? If the owner of the boat or his representative
(e.g., the captain of the ship) has died in the wreck, and if he has not laid
down known rules in advance of the wreck for allocation of seats in such a
crisis, then the lifeboat may be considered-at least temporarily for the
emergency- abandoned and therefore unowned. At this point, our rules for
unowned property come into play: namely, that unowned resources become the
property of the first people possessing them. In short, the first eight people
to reach the boat are, in our theory, the proper “owners” and users of the boat.
Anyone who throws them out of the boat then commits an act of aggression in
violating the property right of the “homesteader” he throws out of the boat.
After he returns to shore, then, the aggressor becomes liable for prosecution
for his act of violation of property right (as well, perhaps, for murder of the
person he ejected from the boat)
The Nature of the State
For there is one crucially important power inherent in the
nature of the State apparatus. All otherpersons and groups in society (except
for acknowledged and sporadic criminals such as thieves and bank robbers)
obtain their income voluntarily: either by selling goods and services to the
consuming public, or by voluntary gift (e.g., membership in a club or
association, bequest, or inheritance). Onlythe State obtains its revenue by
coercion, by threatening dire penalties should the income not be forthcoming.
That coercion is known as “taxation,” although in less regularized epochs it
was often known as “tribute.” Taxation is theft, purely and simply even though
it is theft on a grand and colossal scale which no acknowledged criminals could
hope to match. It is a compulsory seizure of the property of the State’s
inhabitants, or subjects.
It would be an instructive exercise for the skeptical reader
to try to frame a definition of taxation which does not also include theft.
Like the robber, the State demands money at the equivalent of gunpoint; if the
taxpayer refuses to pay his assets are seized by force, and if he should resist
such depredation, he will be arrested or shot if he should continue to resist.
It is true that State apologists maintain that taxation is “really” voluntary;
one simple but instructive refutation of this claim is to ponder what would
happen if the government were to abolish taxation, and to confine itself to
simple requests for voluntary contributions. Does anyone really believe that
anything comparable to the current vast revenues of the State would continue to
pour into its coffers? It is likely that even those theorists who claim that
punishment never deters action would balk at such a claim. The great economist
Joseph Schumpeter was correct when he acidly wrote that “the theory which
construes taxes on the analogy of club dues or of the purchase of the services
of, say, a doctor only proves how far removed this part of the social sciences
is from scientific habits of mind."
It is also contended that, in democratic governments, the
act of voting makes the government and all its works and powers truly
“voluntary.” Again, there are many fallacies with this popular argument. In the
first place, even if the majority of the public specifically endorsed each and
every particular act of the government, this would simply be majority tyranny
rather than a voluntary act undergone by every person in the country. Murder is
murder, theft is theft, whether undertaken by one man against another, or by a
group, or even by the majority of people within a given territorial area. The
fact that a majority might support or condone an act of theft does not diminish
the criminal essence of the act or its grave injustice. Otherwise, we would
have to say, for example, that any Jews murdered by the democratically elected
Nazi government were not murdered, but only “voluntarily committed
suicide”—surely, the grotesque but logical implication of the “democracy as
voluntary” doctrine.
If, then, taxation is compulsory, and is therefore
indistinguishable from theft, it follows that the State, which subsists on
taxation, is a vast criminal organization far more formidable and successful
than any “private” Mafia in history. Furthermore, it should be considered
criminal not only according to the theory of crime and property rights as set
forth in this book, but even according to the common apprehension of mankind,
which always considers theft to be a crime. As we have seen above, the nineteenth-century
German sociologist Franz Oppenheimer put the matter succinctly when he pointed
out that there are two and only two ways of attaining wealth in society: (a) by
production and voluntary exchange with others—the method of the free market;
and (b)by violent expropriation of the wealth produced by others. The latter is
the method of violence and theft. The former benefits all parties involved; the
latter parasitically benefits the looting group or class at the expense of the
looted. Oppenheimer trenchantly termed the former method of obtaining wealth,
“the economic means,” and the latter “the political means.” Oppenheimer then
went on brilliantly to define the State as “the organization of the political
means.”
We have seen clearly why the State needs the intellectuals;
but why do the intellectuals need the State? Put simply, it is because
intellectuals, whose services are often not very intensively desired by the
mass of consumers, can find a more secure “market” for their abilities in the
arms of the State. The State can provide them with a power, status, and wealth
which they often cannot obtain in voluntary exchange. For centuries, many
(though, of course, not all) intellectuals have sought the goal of Power, the
realization of the Platonic ideal of the “philosopher-king.”
The Moral Status of Relations to the State
IF THE STATE, THEN, is a vast engine of institutionalized
crime and aggression, the “organization of the political means” to wealth, then
this means that the State is a criminal organization, and that therefore its
moral status is radically different from any of the just property-owners that
we have been discussing in this volume. And this means that the moral status of
contracts with the State, promises to it and by it, differs radically as well.
It means, for example, that no one is morally required to obey the State
(except insofar as the State simply affirms the right of just private property
against aggression). For, as a criminal organization with all of its income and
assets derived from the crime of taxation, the State cannot possess any just
property.
On Relations Between States
In the ideal moral world, no States would exist, and hence,
of course, no foreign policy could exist.
