Introduction to Libertarian Legal Theory
Libertarianism is both old and new. It is rooted in ancient ideas of natural justice, fairness, peace, and cooperation. You could even say that any civilized society is already somewhat libertarian. After all, civilization requires peace and cooperation, which imply respect for others' rights. This is what the libertarian seeks.
To be sure, there are deviations from ideal libertarianism, in the form of both private crime and public crime — that is, state regulations and laws that derogate from private-property rights. But the prosperity of the modern age is the result of human cooperation and free markets, and it exists despite deviations from libertarian principles. Most people would not steal their neighbor's property even if they could get away with it. They respect their neighbors' libertarian rights already — to a certain degree.
But libertarianism is new, too. It is fresh and radical. Depending on when you peg its origins, it is at most only a couple hundred years old. Arguably, modern, full-fledged, sophisticated, radical libertarianism begins with Rothbard, so it is really only 50 or 60 years old — For A New Liberty was published in 1973.
Libertarian thought obviously requires a sound understanding of property rights and economics. And because Austrian economics is sound economics, sophisticated libertarian theorizing must be informed by a grasp of Austrian economics.
But libertarianism is primarily concerned with individual rights, and thus with aggression — crime — as the fundamental enemy of rights. There is private crime, yes. But the state is an agency of institutionalized aggression and is the primary threat to civilization and rights. Thus, libertarianism has to be informed by Austrian economics, and it has to be radically antistate. As the greatest student of Ludwig von Mises, Rothbard was ideally suited to systematize and radicalize individualist libertarian thought and integrate it, as it had to be, with Austrian economics.
Rothbard's own great student, the Austroanarchist libertarian theorist Hans-Hermann Hoppe, explained Rothbard's libertarian vision as follows:
Rothbard was one of those rare individuals who did contribute to ethics as well as economics.
This is illustrated in The Ethics of Liberty. All elements and principles — every concept, analytical tool, and logical procedure — of Rothbard's private-property ethic are admittedly old and familiar. Even primitives and children intuitively understand the moral validity of the principle of self-ownership and original appropriation. And indeed, the list of Rothbard's acknowledged intellectual predecessors goes back to antiquity. Yet, it is difficult to find anyone who has stated a theory with greater ease and clarity than Rothbard. More importantly, due to the sharpened methodological awareness derived from his intimate familiarity with the logical, axiomatic-deductive method, Rothbard was able to provide more rigorous proof of the moral intuitions of self-ownership and original appropriation as ultimate ethical principles or "axioms," and develop a more systematic, comprehensive, and consistent ethical doctrine or law code than anyone before him. Hence, The Ethics of Liberty represents a close realization of the age-old desideratum of rationalist philosophy of providing mankind with an ethic which, as Hugo Grotius demanded more than 300 years ago, "even the will of an omnipotent being cannot change or abrogate" and which "would maintain its objective validity even if we should assume — per impossibile — that there is no God or that he does not care for human affairs."
Obviously, there remains much work for libertarian intellectuals to do, to refine, develop, and extend this relatively young body of political theory. Rothbard, for example, recognized that even in a free society there is a need to further develop libertarian principles so that they could be applied to human interaction. In particular, libertarian legal and political theorists and specialists would use general libertarian principles to develop a more concrete body of libertarian law. As Rothbard wrote in Power and Market,
The Law Code of the purely free society would simply enshrine the libertarian axiom: prohibition of any violence against the person or property of another (except in defense of someone's person or property), property to be defined as self-ownership plus the ownership of resources that one has found, transformed, or bought or received after such transformation. The task of the Code would be to spell out the implications of this axiom (e.g., the libertarian sections of the law merchant or common law would be co-opted, while the statist accretions would be discarded). The Code would then be applied to specific cases by the free-market judges, who would all pledge themselves to follow it.
And in his preface to The Ethics of Liberty, Rothbard said,
While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.
In addition to applying libertarian principles in this manner, there is much to digest in Rothbard's body of writing alone, not to mention that of other important thinkers. In the last 30 to 50 years there has been an explosion of libertarian and free market books and articles. As more and more people discuss and think about these ideas, new issues, questions, and solutions arise. Students of liberty — as we all are — grapple regularly with hundreds of interesting, fun, and sometimes difficult questions, such as
- What is libertarianism?
- What is the nature of individual rights?
- What is the relationship between libertarianism and the traditional political left-right spectrum?
- How can a stateless society work?
My new online Mises Academy course, Libertarian Legal Theory: Property, Conflict, and Society, will discuss these and many other issues. The course follows on the heels of my last Mises Academy course, Rethinking Intellectual Property: History, Theory, and Economics, about which one student wrote me at the completion of the course,
Thank you so very much for all the excellent work — very few classes have really changed my life dramatically, actually only 3 have, and all 3 were classes I took at the Mises Academy, starting with Rethinking Intellectual Property (PP350) (the other two were EH476 (Bubbles), and PP900 (Private Defense)). …
My purposes for taking the classes are: 1. just for the fun of it, 2. learning & self-education, and 3. to understand what is happening with some degree of clarity so I can eventually start being part of the solution where I live — or at least stop being part of the problem.
The IP class was a total blast — finally (finally) sound reasoning. All the (three) classes I took dramatically changed the way I see the world. I'm still digesting it all, to tell the truth. Very few events in my life have managed to make me feel like I wished I was 15 all over again. Thank you. …
[M]uch respect and admiration for all the great work done by all the members of the whole team.
For more student feedback, click here.
The new course will include material that was developed for three lectures I gave at the Mises Institute's 2002 Rothbard Graduate Seminar, and will cover several topics, including (time permitting)
- The purpose of norms
- The nature of law:
- Legal positivism
- Legal realism
- The nature of rights:
- Are rights a subset of morals?
- What libertarianism is:
- Rights as property rights
- Positive obligations:
- Children and abortion
- Block and forestalling
- (Property) rights as limits on action, not on property rights
- Coercion versus aggression
- What anarcholibertarianism is
- Types of libertarianism
- Justifications for libertarianism:
- Natural rights
- Utilitarianism and consequentialism
- Hoppe's argumentation ethics
- The structure of human action; using others as means
- Why threats are aggression:
- Negligence and torts
- Rothbard on air pollution and torts
- Spam as trespass
- Joint responsibility and responsibility of boss for underlings:
- Punishment, rights, and restitution
- Why fraud is aggression
- Intellectual Property
- The legal system of a libertarian world
- Legislation and law
- Standards and burdens of proof
- The limits of armchair theorizing
- Particular issues
- International law versus municipal law
- Relevance to norms and libertarian law
- Early America and American Revolution
- Constitution as centralizing coup
- Democracy as retrogression
- Fractional-reserve banking
- Marriage/gay marriage
- Political economy/constitutional issues:
- 9th Amendment.
- 14th Amendment
- Jury nullification
- Net Neutrality
- Corporations/limited liability
- Respondeat superior and vicarious liability
- International law versus municipal law
- Common libertarian misconceptions (such as the difference between coercion and aggression; limited liability for corporate shareholders, etc.).
The assigned reading material will all be available free online, most of it on Mises.org, and will include
- Rothbard, The Ethics of Liberty, chapters 3, 5, 9–10, 12–17, and 19
- Hoppe, A Theory of Socialism and Capitalism, chapters 1–2 and 7
- Hoppe, "The Idea of a Private Law Society"
- John Hasnas, "The Myth of the Rule of Law"
- Alfred G. Cuzán, "Do We Ever Really Get Out of Anarchy?"
- Morris and Linda Tannehill, The Market for Liberty (excerpts, optional)
- Randy E. Barnett, The Structure of Liberty, pp. 8, 12, 17–23 (optional)
- Bruno Leoni, Freedom and the Law (various excerpts, optional)
- Kinsella, "What Libertarianism Is"
- ——— "How We Come To Own Ourselves"
- ——— "What It Means To Be an Anarcho-Capitalist"
- ——— "Legislation and Law in a Free Society"
- ——— "Legislation and the Discovery of Law in a Free Society" (optional)
- ——— "Causation and Aggression"
- ——— "New Rationalist Directions in Libertarian Rights Theory"
- ——— "Defending Argumentation Ethics"
- ——— "Punishment and Proportionality: The Estoppel Approach" (optional)
- ——— "A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability"
- ——— "Inalienability and Punishment: A Reply to George Smith"
- ——— "Intellectual Property and Libertarianism,"
- ——— Against Intellectual Property
- Various Wikipedia and online articles on topics such as legal positivism.
I love libertarianism. It's a great intellectual adventure. This should be a fun course, both for beginners and more advanced libertarians. I look forward to seeing you there.
Law would develop in an anarchistic market society without any form of State. Specifically, the concrete form of anarchist legal institutions — judges, arbitrators, procedural methods for resolving disputes, etc. — would indeed grow by a market invisible-hand process, while the basic Law Code (requiring that no one invade any one else's person and property) would have to be agreed upon by all the judicial agencies, just as all the competing judges once agreed to apply and extend the basic principles of the customary or common law.
 The Roman figure depicted on the course advertisement is Papinian (Aemilius Papinianus), a famous Roman jurist. I selected him for two reasons. First, he was one of the most revered and brilliant of Roman jurists, and the Roman law is preferable to (and more libertarian than) English common law in many ways (see my "Legislation and the Discovery of Law in a Free Society" for elaboration). Second, Papinian "is said to have been put to death for refusing to compose a justification of Caracalla's murder of his brother and co-Emperor, Geta, declaring, so the story goes, that it is easier to commit murder than to justify it." Barry Nicholas, (1962) An Introduction to Roman Law, p. 30 n. 2 (emphasis added). Papinian bravely chose death (he was gruesomely killed with an axe) in the name of justice; and his formulation "it is easier to commit murder than to justify it" brilliantly encapsulates the distinction between committing an action and normatively justifying the action. It emphasizes the importance of justifying interpersonal violence, and the difference between description and prescription, between fact and value, between is and ought — insights which play a crucial role in "rationalist" defenses of libertarian rights. (See, on this, my "New Rationalist Directions in Libertarian Rights Theory.")