Reply To: How we come to own ourselves


You wrote: Sorry for the slow reply! I can’t always find time to respond, even though I find this discussion very interesting, and personally very important to arriving at a consistent political philosophy. I hope the pace of the discussion is OK with you!

No problem. I won’t address all the concerns you have expressed in your posting in my response. I’ll try to focus on what I think is the most important item. If I ignore something that you think I should deal with or try to deal with, revert to me with the material.

I had written: Block & Barnett come more or less to this conclusion. ‘There is a way to address this problem that does not rely upon some necessarily arbitrary point along the continuum; it is to resort to common (economically efficient) practice.’ Such reasonable judgements, in fact, are the function of the municipal law, as specified in a particular community by tradition, custom, practice, experience, and so on.

You wrote: This essentially concedes that the foundational concept of self-ownership is subject to the determination of the society/State, and NOT to the individual – right? Then the real question is: *what else* is subject to the determination of the society/State rather than the individual?

No; I don’t think it does concede this. Allow me to present an example from another area in an effort to make my point. Consider the following. Take the principle: murder is both morally and legally impermissible. Libertarians would be willing to grant this. Murder is a pretty solid example of a violation of the NAP. Now, here’s the question. Is every homicide murder? (where homicide is intended to be a neutral description of a human act which has as its result the death of another human being). I think the answer here has to be ‘no.’ Why is this? Well, that brings us back to the notion of murder. Murder is usually defined as the act of killing another human being where the agent intended to kill or cause serious bodily injury to the victim where there are no justifications or excuses [e.g. killing another human being in the line of duty during a war is normally exempted; if the assailant is deemed to have been insane at the time of the infliction of the injury resulting in death, etc.] If we come across a dead human body, nothing about that tells us just as such whether we have a homicide on our hands or not. Suppose, on further examination, it turns out that there’s a gunshot wound to the head and that a doctor verifies that this was the cause of death. Is this homicide? Probably. It could be accidental – carelessness with a firearm. It could be suicide. It could have been the infliction of a second party, in which case we might have justifiable homicide (self-defence, in some jurisdictions), manslaughter (various forms of ‘degree’ in the USA), or murder. Suppose (to cut a long story short) we get to a situation where X is accused of murder. The prosecution have to establish to the satisfaction of the jury beyond a reasonable doubt that X did intend to kill or inflict serious injury and that there were no mitigating circumstances (self-defence, insanity, etc.) In the end, despite the clarity of the principle of what constitutes murder, the questions of whether or not X is guilty of murder requires judgement (based on evidence) in the light of all the circumstances. We cannot make a practical judgement just by having the definition of homicide clearly in front of us.

More broadly: there are two possible ways to make sound moral/legal judgements. One is to have every possible set of circumstances written up in a big book (a very big book!) and just look up whatever we have to evaluate and find it on the relevant page. (Ignore for the moment how this was evaluated in the first place). The second was to make sound moral/legal judgements is to establish some principles which are then applied to particular circumstances. The application of principles to particular circumstances is a practical art and requires the development of prudence. This is done by us individually as we morally mature and by society at large, usually through the medium of contested and settled law cases. (Law in this context is proper law and not mere legislation.) Many applications of principles are easy; some, however, are not.

Now, law in any libertarian society would have the NAP at its core. No form of conduct that violated the NAP could be legal in any libertarian society. Outside this, however, libertarian societies are free to develop voluntary rules and regulations for the production of human flourishing in whatever way seems best to those in the societies and in accordance with whatever overarching agreements such societies are founded upon. I expect there would be much variety here. Even so, situations would still arise which would involve the use of judgement – there is no way to avoid that in any real society. The settling of disputed questions requires matching the case against the NAP—if it violates the NAP, it is illegal. It if doesn’t violate the NAP, it may violate one or other of the agreed upon regulations to which all the members of that society have signed up. If it doesn’t, there is no problem. If it does, then the offender will be judged according to the regulations by the mode of judgement which itself is included and to the operation of which he has agreed.

You wrote: So then, is the real foundational concept of anarcho-capitalism “broad acceptability” — in other words, I can do whatever I like, as long as it is broadly acceptable?

No, the foundation concept of anarcho-capitalism is the NAP. After that, everything else is a matter of agreement.

Best wishes,

Gerard Casey