[seraphim37]

(I originally posted this here, but Tom Woods suggested I post it in this forum instead.)

I’ve been puzzling over this for years.

Locke had a very elementary (and unsatisfying) treatment of this – for example, see here: http://libertyonline.hypermall.com/Locke/second/second-6.html

I like the direction of Kinsella’s article on this, but I find it tentative and unsatisfying: https://mises.org/library/how-we-come-own-ourselves It also reveals the lack of consistent libertarian thought on the topic.

Surely there must be a more thorough treatment of this topic somewhere? This is so fundamental to libertarian philosophy, but I can’t seem to find a “meaty” treatment of the topic anywhere.

By “meaty” I mean it should address topics such as the following:
– Parents and children disagreeing over whether a child is ready to be “on their own”
– Custody disputes
– Rights and self-ownership of the developmentally disabled
– Rights and self-ownership of the mentally ill
– Rights and self-ownership of the mentally incapacitated (e.g., loner in a coma)
– Rights and self-ownership of elderly with dementia (with or without aggressive tendencies)

The fundamental problem seems to be: who decides?

If it’s anyone (or any collective) other than the individual himself/herself, then this is basically another way of saying that there are certain circumstances where self-ownership is not as inviolable as we would like to claim it to be.

And this leads to the even trickier question: Who gets to decide which circumstances apply, in which the violation of the principle of self-ownership is allowed or even required?

There will obviously be disagreement here. And such disagreement comes with its own package of intractables… which leads to another series of questions… which I will leave for another time. 🙂

If this is already covered somewhere in the literature, please point me to it — I’d love to get my teeth into something like that.

[gerard.casey]

Dear Seraphim,

As Jeeves in the P. G. Wodehouse stories might say: Rem acu tetigisti – you’ve put your finger on the sharp point.

The paradigm case for discussions in libertarian theory involves relations between competent adults. The applicability of libertarian principles to incompetents (I use this term non-pejoratively to cover the categories you mention in your query) is contested.

In the course I taught for several years on ‘Anarchy, Law and the State’, which used Rothbard’s The Ethics of Liberty as a core text, I always left his chapter on children until the very end, so controversial did it always turn out to be.

I am not aware of any completely satisfactory treatment of the issues you raise. There may be such a treatment but, if there is, someone needs to point it out to me. I would be just as glad to know of it as you would and I’d be very happy that someone else had done the heavy lifting.

Here is a tentative attempt at answering your questions, revisable in the light of objections, counter-examples and further discussion (which I invite)

Let me take the case of a very young child as a point of discussion (which can then be applied, if indeed it can, to the other categories of incompetents you mention.)

It is hard to understand what would be meant by claiming that a one-year old child is an actual self-owner. Such an entity might be a moral patient (that is, be such that certain things cannot be done to it) but scarcely a moral agent (that is, an entity that can be help morally accountable for its actions). If such a child doesn’t own itself, is it owned by another? Perhaps, but not in the way in which, say, a pencil can be owned. Rather, it has to be owned as something which has the capacity to become a self-owner in time, so that the ownership by another of it is to be exercised for its benefit, a kind of trustee ownership, if you will.

Something like this already applies in our legal system. If a very young child becomes the heir of its deceased parents, the law will not recognise it as having the capacity to exercise actual ownership rights over the property that has been bequeathed to it. Instead, the law will appoint a trustee (if one has not already been appointed) who will be the legal owner of the child’s property and who will be expected to exercise control over that property for the benefit of the child (the beneficial owner) and, eventually, upon the child’s reaching its legal majority, to relinquish full control of its property to the child.

This notion of trustee ownership could be applied not only to a child’s external property but to the child itself, so that its parents (or guardians) are its legal owners who must exercise that ownership for the child’s benefit and ultimately relinquish it to the child.

Now we come to your two questions: (1) who decides?, and (rephrasing your question slightly)(2) who gets to decide the circumstances in which X is not in a position to be an actual self-owner?

Who decides? Trustees, which would be, in the case of incompetent children, its parents or guardians; in the case of incompetent adults, those whom that adult has appointed when competent or, in the case of non-appointment, that adult’s nearest relative or someone appointed by the relevant legal authorities.

Who gets to decide the circumstances…..? Sometimes no serious decision is required. A one-year old child is not competent; a sixteen year old child is normally competent. The problem arises in boundary situations. Here, there is no way, it seems to me, of deciding a priori. Competence is a capacity which should be empirically demonstrable. If a person claims to be competent and can demonstrate it, then that answers the question and no one can override that person’s decisions. If, by any reasonable standard, a person (a young child or an adult who has become senile or an adult with mental problems of a sufficiently serious nature, etc.) cannot demonstrate competence,then, it seems to me, that has to be taken to show their incompetence and others will have to make the relevant decisions on their behals.

There are further issues. Who, if anyone, has an obligation to exercise the role of trustee in cases of incompetence? Can a trusteeship be imposed unilaterally on an unwilling agent?

I have answers to these questions (based on the principles outlines above) but not everyone may agree with me.

In any event, take what I’ve written as a first try, and let me know what you think.

Best wishes,

Gerard Casey

[seraphim37]

Thank you so much for the interesting and detailed reply! It sparks lots of thoughts and questions.

The applicability of libertarian principles to incompetents is contested.

Not to be snarky, but that seems equivalent to saying “The applicability of libertarian principles to the human condition is contested.” 🙂

In the course I taught for several years on ‘Anarchy, Law and the State’, which used Rothbard’s The Ethics of Liberty as a core text, I always left his chapter on children until the very end, so controversial did it always turn out to be.

Thanks for the reference – I found it online here. I was surprised at how many assumptions Rothbard seems to be making in his argument. I will need to re-read this a few times, but here are my first impressions. His forcefulness of argumentation was quite different than Kinsella’s tentative explorations in his article, but I found it even more unsatisfying than Kinsella, simply because he does not seem to allow room for all the nuances and edge cases. It’s all so very clear cut. That seems like a formula for oversimplification, even to the point of hubris. I was surprised to find that in Rothbard — I haven’t read him really deeply, but everything I *have* read (until this) was more sophisticated and satisfying.

Here is a tentative attempt at answering your questions, revisable in the light of objections, counter-examples and further discussion (which I invite)

Thank you! I am really looking forward to the discussion!

If such a child doesn’t own itself, is it owned by another? Perhaps, but not in the way in which, say, a pencil can be owned. Rather, it has to be owned as something which has the capacity to become a self-owner in time, so that the ownership by another of it is to be exercised for its benefit, a kind of trustee ownership, if you will.

Yes, this is the heart of the matter. But what bothers me about this line of reasoning is that it treats this kind of situation (namely, trusteeship) as an edge case, as an odd example, saved for the last topic in the course because it is so difficult. 🙂 But this is really not an edge case — it is absolutely fundamental. After all, every competent adult was once an incompetent child.

What is the line of demarcation between competent and incompetent?

And who is to decide on the nature of the trusteeship?

These are not edge cases in actual human society, with our custody battles, conflicts of interest in the care of incompetent seniors, mind-altering drugs being prescribed more frequently than at any time in history.

Something like this already applies in our legal system. If a very young child becomes the heir of its deceased parents, the law will not recognise it as having the capacity to exercise actual ownership rights over the property that has been bequeathed to it. Instead, the law will appoint a trustee (if one has not already been appointed) who will be the legal owner of the child’s property and who will be expected to exercise control over that property for the benefit of the child (the beneficial owner) and, eventually, upon the child’s reaching its legal majority, to relinquish full control of its property to the child.

This notion of trustee ownership could be applied not only to a child’s external property but to the child itself, so that its parents (or guardians) are its legal owners who must exercise that ownership for the child’s benefit and ultimately relinquish it to the child.

Yes, of course. But in an anarcho-capitalist society, to whom does the child have recourse if the trustee abuses his trust? I suppose it would be left up to the community’s moral sentiments to intervene if there was some kind of consensus about the situation. The community could come up with some general principles by which they decide such things. Etc. But again, this gets to the fundamental question: who decides?

Who decides? Trustees, which would be, in the case of incompetent children, its parents or guardians; in the case of incompetent adults, those whom that adult has appointed when competent or, in the case of non-appointment, that adult’s nearest relative or someone appointed by the relevant legal authorities.

These seem like reasonable ideas. But it still feels unsatisfying to me. And you hit the nail on the head with this:

The problem arises in boundary situations.

Yes, of course, this is where all the legal disputes arise — this is where all the really interesting questions pop up — and this is where a theory is really tested to see if it holds water.

Competence is a capacity which should be empirically demonstrable.

Demonstrable *to whom*?

If a person claims to be competent and can demonstrate it, then that answers the question and no one can override that person’s decisions.

Again, demonstrate *to whom*?

Perhaps a situation arises, where a 16-year-old seeks to end a trustee situation and assert his full competence, and claim his inheritance. The trustee disputes the competence of the teenager, and refuses to relinquish the property. To whom can the teenager appeal?

To the local community? Maybe, perhaps, the teenager is able to convince a majority of the community that he is competent. But not everyone. Who decides? What if the ENTIRE local community sides with the teenager. But the trustee still refuses to give up the property, and claims to have good reason for it. Who decides? If both the teenager and the trustee are acting in good faith but are simply in strident disagreement, how is this to be resolved? It really does seem to come down to “who decides when the teenager owns himself”.

Rothbard asserts that the teenager owns himself as soon as he is able to “run away”:

The child has full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or “runs away” from home.

(emphasis in original)

But how does this actually resolve the cases of the trustee who refuses to relinquish the inheritance (perhaps in good faith)?

If, by any reasonable standard, a person (a young child or an adult who has become senile or an adult with mental problems of a sufficiently serious nature, etc.) cannot demonstrate competence,…

But who decides what comprises a “reasonable standard”?

There are further issues. Who, if anyone, has an obligation to exercise the role of trustee in cases of incompetence? Can a trusteeship be imposed unilaterally on an unwilling agent?

Good question. 🙂

I have answers to these questions (based on the principles outlines above) but not everyone may agree with me.

I would like to hear them.

In any event, take what I’ve written as a first try, and let me know what you think.

I think we’ve opened a can of worms, but it needed to be opened. 🙂

I suppose, in the end, it boils down to this (for me at least): There will always be disagreements, and it is not possible to resolve them all — let alone resolve them all in a manner that seems just and right to all parties. And the fact is, regardless of the political and legal ecosystem in which we find ourselves, we still need to find a way to live in a society where we have substantial, material disagreements with our neighbors. Appealing to a “final authority” such as a State obviously brings about more problems than appealing to a “final authority” such as a local community of peers and neighbors informed by libertarian ideas. 🙂 I suppose the real problem is preventing the latter from inexorably mutating into the former. But without a clear theoretical basis to guide this work — a theory that covers all the edge cases — how are we to proceed?

Anyway, I really welcome your additional thoughts and ideas, and please poke at my arguments and show me where I am going wrong.

Thanks very much!!
Seraphim

[gerard.casey]

Thank you for those interesting comments and follow-on questions. I am going to take a little time to think them over before reverting to you.

Best,

Gerard Casey

[gerard.casey]

Coming back (finally!) to your post. First, some general points, and then I’ll address (some of) your questions.

I wrote: The problem arises in boundary situations.
You remark: Yes, of course, this is where all the legal disputes arise—this is where all the really interesting questions crop up—and this is where a theory is really tested to see if it holds water; and you ask: What is the line of demarcation between competent and incompetent?

The demarcation (boundary) problem is not specific to the issue of competence/incompetence but is a general feature relating to the applicability of all binary categories. What follows is an excerpt from a paper I gave at the Mises Institute some years ago, which addressed this issue. (The rest of the paper applied what I had written to the possession/ownership distinction, so I’ve left it out)

*****

Begin excerpt

My children sometimes tease me by suggesting that the best way to send me to sleep is to put a film in glorious Technicolor in the DVD player and make me watch it. According to them, I manifest signs of life only in the presence of black & white films. Whatever about the aesthetic advisability of preferring black and white over colour in cinematic matters, black and white thinking—the application of rigid, sharply delineated distinctions—may not always be appropriate or even possible in intellectual and conceptual matters.

The Sorites
The making of binary distinctions such as that between tall/short, good/bad, beautiful/ugly, generous/mean, chair/non-chair is commonplace but all such distinctions appear to be beset by the scourge of the sorites. In a sorites, by traversing a series of incremental steps or stages between two contraries, we can show that one shades into the other in a seemingly inexorable manner thus eroding (or appearing to erode) the distinction between them. The standard example of the sorites, from which it takes its name, is to ask how many grains of sands to you have to take from a heap before it ceases to be a heap?

Try the following experiment on a captive audience. Ask people to raise their hands if they would consider men 6’ 6” and over to be tall. My guess is that you’ll get a 100% positive response. Now ask people to raise their hands if they consider men 4’ 4” and under to be short. Once again, a 100% positive response. [I’m assuming the experiment takes place in Europe or North America. If you were to run it in parts of Central Africa, you might well get different results.] Move your suggested heights progressively downwards from 6’ 6” and up from 4’ 4” and I suspect that the percentages will drop progressively from 100% the more you move away from your starting points. (Even more interesting, perhaps, is to watch how some hands will raise, then lower, then settle at a kind of half-mast!)

Block & Barnett
The sorites problem can be applied to libertarian topics and has been so applied in an article written by Walter Block & William Barnett II. [“Continuums”, Ethics and Politics, Vol. 10, No. 1, pp. 151-66 (2008)] They identify what they call a “continuum” problem [i.e. a “sorites” problem] in law and political economy. They begin with this example. What, they wonder, constitutes a genuine threat of violence? They imagine someone shaking his fist 3 inches away from someone else’s nose (other circumstances being appropriate such as its not being playful, or a joke, or part of a rehearsal for a play) and then they imagine him doing so 3 miles away. 3 inches very likely constitutes a threat; 3 miles doesn’t. They then go on to say: “If the same action is a threat at 3 inches but not at 3 miles it follows ineluctably that at some point in between these two distances its very nature changes from the one to the other.” (p. 152 Emphasis added) If this point of change were, say, 30 yards, then fist-shaking at 29 yards 11 inches would still be a threat but not at 30 yards 1 inch. !

As we saw in our experiment, along any given continuum (let’s stick with the “short” and “tall” example), we can move progressively from a given point which can correctly be described as short to a point that can be correctly described as tall so that as we move along the line change does occur from one to the other; however, it doesn’t follow that the change occurs at a point. Some people are clearly and unambiguously short, others clearly and unambiguously tall, and others—well, who can tell?

To return to Block and Barnett’s example: at one point on their continuum what we have is clearly not a threat; at another it clearly is a threat, and in between, we have a fuzzy area where we simply can’t tell for sure whether someone is making a threat or not. Block & Barnett concede as much when they conclude: “How, then, can we solve the problem of whether or not a response or retaliation against a threat is justified or not given the conditions as depicted above? The only answer is that there is no answer, at least not one that admits of geographical extension. That is, no single cut off point will be both reasonable and non arbitrary.” (p. 153 emphasis added) While we may be unable to draw a dimensionless dividing line between threat and non-threat, it does not follow that there is no difference between them or that there is no way of making a reasonable judgement as to which is which.

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. In response to such problems, the law elaborated the concept of assault (as distinct from battery) to signify any act that created an apprehension in another of an imminent, harmful or offensive contact, that act to consist of a threat of harm accompanied by an apparent present ability to carry out that threat. Whether or not an act of fist-shaking constitutes assault is a matter of judgement, but the judgement, while requiring the exercise of discrimination, is not based upon arbitrary factors.

B&B’s overall conclusion is that libertarian theory (and I would add, not only libertarian theory) has continuum problems in which one is not in a position simply to set arbitrary cut off points. “We conclude from this not any shortcoming in the principles of non aggression but rather the importance of private institutions in the law industry” (161-62).

End excerpt

*****

I had written: If such a child doesn’t own itself, is it owned by another? Perhaps, but not in the way in which, say, a pencil can be owned. Rather, it has to be owned as something which has the capacity to become a self-owner in time, so that the ownership by another of it is to be exercised for its benefit, a kind of trustee ownership, if you will.

And you responded: Yes, this is the heart of the matter. But what bothers me about this line of reasoning is that it treats this kind of situation (namely, trusteeship) as an edge case, as an odd example, saved for the last topic in course because it is so difficult. But this is really not an edge case—it is absolutely fundamental. After all, every competent adult was once an incompetent child.

I think it is fairly clear that an entity such as a chair is not the kind of thing that can be an owner of anything, not even of itself. Somewhat more controversially, I would argue that non-human animals cannot own anything either (they can, of course possess something, but that is not ownership). Only rational beings can own anything. I would argue that there is no problem in principle with human beings owning non-human things (leaving aside specific justifications for X’s owning Y). The limiting—or edge case, if you like—is whether or not human beings themselves can be owned and, if so, in what ways.

There are two basic positions on this: one says ‘no’; the other says ‘yes’. The ‘no’ position, typically, simply denies that human beings, being rational, are the kind of thing that can be owned by anyone, even by themselves; in effect, that the notion of ownership has no purchase in this context. The institution of slavery, one of the oldest of all human institutions, and whatever one’s moral approach to the topic, would seem to provide compelling legal evidence against this view.

If we think it makes sense to say (of competent adults) that they own themselves, then, and only then, does the problem of incompetence arise. All (competent) adults were once (incompetent) children (as you note), and some (now competent) adults will become (incompetent) adults.

This is where B&B’s suggestions come in and I quote again from my paper: ‘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. In response to such problems, the law elaborated the concept of assault (as distinct from battery) to signify any act that created an apprehension in another of an imminent, harmful or offensive contact, that act to consist of a threat of harm accompanied by an apparent present ability to carry out that threat. Whether or not an act of fist-shaking constitutes assault is a matter of judgement, but the judgement, while requiring the exercise of discrimination, is not based upon arbitrary factors.’

In a libertarian society, the legal bedrock is the principle of non-aggression. But, of course, that only provides the outer boundary of what cannot legally be done to you even outside the context of consent. Within the context of the non-aggression principle, any society is free, consensually, to organise its own affairs. In some matters, members of any society are likely to avail of various forms of expertise—medical, arbitration, etc. And it is in this context that contested cases will be arbitrated.

You ask: Who is to decide the nature of trusteeship?

Once again, a boundary problem. Take a case of the trusteeship of property. If a trustee converts the trust property to his own use and consumes it, that’s clearly a violation of trust. If a trustee supervises the property as if it were his own, exercising care and diligence, and handing it over eventually to the beneficial owner in an improved state compared to that in which he received it, that is clearly a case of a trust well carried out. Now any legal system would have to have the means to address contested cases, and in a libertarian society, it would be foolish to leave such things to chance.

The same considerations apply to trusteeship over non-competent human beings. Some ways of treating them will be clearly a violation of trust, other ways, clearly a satisfactory way; and still others, contested. Once again, it would be foolish to leave such things to change.

You seem to be coming to a somewhat similar conclusion when you write: But in an anarcho-capitalist society, to whom does the child have recourse if the trustee abuses his trust? I suppose it would be left up to the community’s moral sentiments to interven if there was some kind of consensus about the situation. The community could come up with some general principle by which they decide such things. Etc. But again, this gets to the fundamental question: who decides?

Once again, I believe that, given the nature of such possible disputes, any libertarian society would have to accept some method of resolving them in a way that is broadly acceptable. This could vary in detail from one society to another. To take an example, let me refer to the question of whether, in an society that is both agricultral and pastoral, the owners of animals have an obligation to fence them in, or the owners of crops have an obligation to fence them out. Either solution solves the problem. In Britain and Ireland, the owners of animals have the obligation to fence them in; in the American West, on the cattle ranges, it would have been staggeringly expensive, even if possible, to fence the cattle in, so the other option was taken.

You write: I suppose, in the end, it boils down to this (for me at least): There will always be disagreements, and it is not possible to resolve the all—let alone resolve them all in a manner that seems just and right to all parties. And the fact is, regardless of the political or legal ecosystem in which we find ourselves, we still need to find a way to live in a society where was have substantial, material disagreements with out neighbors. Appealing to a ‘final authority such as a State obviously brings about more problems than appealing to a ‘final authority’ such as a local community of peers and neighbors informed by libertarian ideas. I suppose the real problem is preventing the latter from inexorably mutating into the former. But without a clear theoretical basis to guide this work—a theory that covers all the edge cases—how are we to proceed?

I am in substantial agreement with this comment of yours, right up to the last sentence! No system can cover every possible edge case in advance. For example, the common-law principle of Rylands v Fletcher was developed precisely in a context in which the circumstances were non-normal and there was no immediately obvious set of principles to appeal to. In practice, any society has a case-law system that covers many of the more common sources of friction. The principles are, firstly, the non-aggression principle, and secondly, the body of practically educed principles that a society has evolved over time, which are known to all, and in the light of which new, unforeseen cases of friction can be resolved.

Perfection is not possible, but a dose of practical wisdom will take us a long way.

Best wishes,

Gerard Casey

[seraphim37]

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!

The excerpt on sorites / “heaps” is a useful one. Thanks!

<< I think it is fairly clear that an entity such as a chair is not the kind of thing that can be an owner of anything, not even of itself. >>

This seems to be steering the discussion away from “negative rights” more toward “positive rights”. Isn’t self-ownership a “negative right” like all other rights, in that it is really asserting that nobody should be allowed to force the individual to do anything against his will? Talking about the self-ownership of a chair is meaningless not because it’s simply obvious that it’s meaningless, but because if you say a chair has self-ownership you are saying nobody should force the chair to do something against its will. The chair doesn’t have a will so this doesn’t make any sense — and that’s why the chair doesn’t have self-ownership. (Right?) Rather, the chair already has *an owner*, so the discussion about the rights of chairs is really about the rights of owners — nobody should be able to force the chair to do something against the will of the chair’s owner. (Right?)

<< ‘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. >>

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?

<< Within the context of the non-aggression principle, any society is free, consensually, to organise its own affairs. In some matters, members of any society are likely to avail of various forms of expertise—medical, arbitration, etc. And it is in this context that contested cases will be arbitrated. >>

Let’s say a society has 100% consensus that they need an armed security force to protect themselves from aggressive invaders. So they voluntarily fund and supply and commission this armed security force, with specific guidelines on their scope of activity. So far so good, I suppose. However, there are boundary cases here — what if some members of the society are found to be colluding with the invaders? Does the armed security force have the right to forcibly expel the colluder? Who decides? It is unlikely that every contingency will have been outlined in the actual charter of the security force. Does every situation require a consensus of the society to act? Of course this is impossible, since the colluder is a member of that society and would not give consent.

Another example, literally a boundary problem. 🙂 Let’s say two neighbors argue about the location of the boundary between their properties. They cannot agree, so one proposes arbitration. The other neighbor refuses — and happens to be richer, better armed, and more influential in the local society. What recourse does the poorer neighbor have in this case?

<< Now any legal system would have to have the means to address contested cases, and in a libertarian society, it would be foolish to leave such things to chance. >>

I agree – but what is the solution?

<< I believe that, given the nature of such possible disputes, any libertarian society would have to accept some method of resolving them in a way that is broadly acceptable. >>

I tend to agree, but this leaves the fundamental question unresolved. The foundational concept of libertarianism — self-ownership — from which all the other rights (private property, etc.) derive — is found to be subject to “broad acceptability”. And there doesn’t seem to be any way around this.

A “minarchist” libertarian philosophy seems to concede this. But anarcho-capitalism would seem to decry it. But I don’t see a way around it.

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?

That almost sounds snarky or cynical, which is not my intent — I am really asking this honestly. 🙂

<< I am in substantial agreement with this comment of yours, right up to the last sentence! >>

Then I must not be so far off! 🙂 The problem is, my last sentence was, in fact, a question. 🙂 Which makes me wonder — does libertarian philosophy not have an answer?

The crux of the matter is — if the real fundamental principle is “broad acceptability” — well, the problem is, we have that NOW. Most people — if you look at who bothers to get involved trying to change society — don’t feel the interest or desire to change the status quo, or are OK with the status quo. Or they feel powerless to change anything. “Broad acceptability” is found well within the boundaries of “the index card of allowable opinion”, and there are all kinds of social and political dynamics that keep it there. H.L. Richardson’s little book, Confrontational Politics, gives a really good, clear explanation of how those dynamics work in state legislatures and American partisan politics — he gets into the human and social aspects of the problem, which seem as ancient as the Athenian city-state.

But if the foundations of libertarianism also concede to “broad acceptability”, then what real difference can libertarianism actually make, to bring about real change?

[gerard.casey]

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

[seraphim37]

I’ve been stewing for a good long while on this thread. (1.5 years?! LOL)

Gerard wrote:

the foundation concept of anarcho-capitalism is the NAP

It seems to me that the idea of self-ownership is even more foundational than the NAP.

In fact, the NAP derives logically from the concept of self-ownership. Is this not correct?

And this is why the determination of self-ownership is so critical.

With all these edge cases (discussed above), the problem is whether or not someone really has self-ownership — and who can make such a determination.

Thus, the means by which we determine self-ownership is even more fundamental than the NAP.

But in all the above discussion, the only practical means were basically leaving the question to the community, following its customs and norms. That seems entirely inadequate.

And it doesn’t help to say the foundation is still the NAP. That is circular reasoning, as I have just illustrated.

To have a consistent logical foundation here, the individual himself or herself must always unilaterally have self-ownership, and does not require anyone else’s permission or consent to assert this. However, this leads to many obvious conundrums described in the thread above.

[gerard.casey]

Dear Seraphim,

Responding to the point you raise here and in a parallel thread.

I had to read through the entire thread to pick up on where we left off!

When I say that the NAP is foundational, I intend this to be understood in the legal context. (See above where I say “Now, law in any libertarian society would have the NAP at its core.”) If someone were to ask why we should observe the NAP in our relations with others, we would have to say that not to do so would violate the property others have in themselves, which is precisely your point.

You write “To have a consistent logical foundation here, the individual himself or herself must always unilaterally have self-ownership, and does not require anyone else’s permission or consent to assert this. However, this leads to many obvious conundrums described in the thread above.” I agree with you on this point but I don’t think that the boundary conundrums cause us any insuperable problems. Fully adult, articulate, independent human beings are unequivocally self-owners; two year old, babbling, dependent human beings are not.

That we cannot draw a sharp dividing line between the two does not call either clear example into question. That’s why I spent some time laying out the sorites. Night is night, and day is day, but in between there is evening, gloaming and dawn.

Thank you for your prayers.

Best wishes,

Gerard Casey

[seraphim37]

It’s precisely in the gray areas where a political/economic philosophy needs to be most robust. Otherwise it will prove inadequate to handle everyday life. It’s in the border cases that all the conflicts arise. If our philosophy can’t give strong guidance and best practice on how to resolve such conflicts while preserving the NAP, but instead must appeal to common practice and belief, then it has little practical value as a political philosophy.

“No battle plan survives contact with the enemy.” When your plan meets the real world, the real world wins.

[gerard.casey]

Aristotle remarked in his Nicomachean Ethics (I paraphrase) that we can expect of matters only the degree of certainty that they will bear. We can have absolute certainty in mathematics but in practical matters, this is not possible. Here’s the quote:

“Our discussion will be adequate if it has as much clearness as the subject-matter admits of, for precision is not to be sought for alike in all discussions, any more than in all the products of the crafts. Now fine and just actions, which political science investigates, admit of much variety and fluctuation of opinion, so that they may be thought to exist only by convention, and not by nature….We must be content, then, in speaking of such subjects and with such premisses to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premisses of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs.”

Now, I would argue that the fundamental legal principle of libertarianism (the NAP) is absolutely clear and precise; it’s application, however, requires prudence, which is a form of practical judgement. After the passage I just cited from Aristotle, he goes on to say:

“Now each man judges well the things he knows, and of these he is a good judge. And so the man who has been educated in a subject is a good judge of that subject, and the man who has received an all-round education is a good judge in general. Hence a young man is not a proper hearer of lectures on political science; for he is inexperienced in the actions that occur in life, but its discussions start from these and are about these; and, further, since he tends to follow his passions, his study will be vain and unprofitable, because the end aimed at is not knowledge but action. And it makes no difference whether he is young in years or youthful in character; the defect does not depend on time, but on his living, and pursuing each successive object, as passion directs. For to such persons, as to the incontinent, knowledge brings no profit; but to those who desire and act in accordance with a rational principle knowledge about such matters will be of great benefit.”

Reasoning in politics and ethics is not a matter of applied mathematics and there is not escaping the need for prudential judgement. Everyone, no matter what his political beliefs, is in the same boat here. Libertarians, having a simple and clear fundamental principle, are better placed than most when it comes to argument.

Gerard Casey

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