Yet Rothbard is not content with having developed a full-fledged economic defense of a pure market system. Culminating in 1982 with his second magnum opus, The Ethics of Liberty, he proceeds to provide us with a comprehensive system of ethics to complement and complete the task of justifying laissez faire.
Mises, along with most social scientists, accepts the Humean verdict that reason is and can be no more than the slave of the passions. That is to say reason or science can do no more than inform us whether or not certain means are appropriate for bringing about certain results or ends. It is beyond the powers of reason, though, to teach us what ends we should choose or what ends can or cannot be justified. Ultimately, what ends are chosen is arbitrary from a scientific point of view; they are a matter of emotional whim. To be sure, Mises, like most other economists, is committed to a sort of utilitarianism. He favors life over death, health over sickness, abundance over poverty. And insofar as such ends, in particular the goal of achieving the highest possible standard of living for everyone, are indeed shared by other people, as he assumes they generally are, as an economic scientist Mises recommends that the correct course of action to choose is a policy of laissez faire. And doubtlessly, insofar as economics can say this much, the case for laissez faire is a highly important one. However, what if people do not consider prosperity to be their ultimate goal? As Rothbard points out, economic analysis only establishes that laissez faire will lead to higher standards of living in the long run. In the long run, however, one will be dead. Why then would it not be quite reasonable for a person to argue that while one perfectly agreed with everything economics had to say, one was still more concerned about one’s welfare in the short run and there, clearly for no economist to deny, a privilege or a subsidy would be the nicest thing? Moreover, why should social welfare in the long run be one’s first concern at all? Couldn’t people advocate poverty, either as an ultimate value in itself or as a means of bringing about some other ultimate value such as equality? The answer, of course, is that such proposals are made. However, whenever they are, not only has economics nothing to say, but according to Mises and other utilitarians there is nothing more to be said at all, since no reasonable, scientific way of choosing between conflicting values exists, as ultimately they are all arbitrary.
Against this position Rothbard takes sides with the philosophical tradition of rational ethics claiming that reason is capable of yielding cognitive value statements regarding man’s proper ends. 11 More specifically, he aligns himself with the natural law or natural rights tradition of philosophic thought which holds that universally valid norms can be discerned by means of reason as grounded in the very nature of man. The Ethics of Liberty presents the full case for the libertarian property norms being precisely such rules.
Agreeing with Rothbard on the possibility of a rational ethic and, more specifically, on the fact that only a libertarian ethic can indeed be morally justified, I propose a different, non-natural-rights approach to establishing these two related claims. It has been a common quarrel with the natural rights position, even on the part of sympathetic readers, that the concept of human nature is far “too diffuse and varied to provide a determinate set of contents of natural law.” Furthermore, its description of rationality is equally ambiguous in that it does not seem to distinguish between the role of reason in establishing empirical laws of nature on the one hand and normative laws of human conduct on the other. Avoiding such difficulties from the outset, I claim the following approach to be both more straightforward and more rigorous as regards its starting point as well as its methods of deriving its conclusions. Moreover, as I will explain later, my approach also seems to be more in line with Rothbard’s when it comes to justifying the specific norms of libertarianism than the rather vague methodological prescriptions of the natural rights theorists.
Let me start by asking what is wrong with the position taken by Mises and so many others that the choice between values is ultimately arbitrary? First, it should be noted that such a position assumes that at least the question of whether or not value judgments or normative statements can be justified is itself a cognitive problem. If this were not assumed, Mises could not even say what he evidently says and claims to be the case. His position simply could not exist as an arguable intellectual position.
At first glance this does not seem to take one very far. Indeed, it still seems to be a far cry from this insight to the actual proof that normative statements can be justified and that it is only the libertarian ethic which can be defended. This impression is wrong, however, and there is already much more won here than might be suspected. The argument shows us that any truth claim, the claim connected with any proposition that it is true, objective or valid (all terms used synonymously here), is and must be raised and settled in the course of an argumentation. Since it cannot be disputed that this is so (one cannot communicate and argue that one cannot communicate and argue), and since it must be assumed that everyone knows what it means to claim something to be true (one cannot deny this statement without claiming its negation to be true), this very fact has been aptly called “the a priori of communication and argumentation.”
Arguing never consists of just free-floating propositions claiming to be true. Rather, argumentation is always an activity, too. However, given that truth claims are raised and settled in argumentation and that argumentation, aside from whatever it is that is said in its course, is a practical affair, it follows that intersubjectively meaningful norms must exist—precisely those which make some action an argumentation—which have a special cognitive status in that they are the practical preconditions of objectivity and truth.
Hence, one reaches the conclusion that norms must indeed be assumed to be justifiable as valid. It is simply impossible to argue otherwise, because the ability to argue so would in fact already presuppose the validity of those norms which underlie any argumentation whatever. In contradistinction to the natural rights theorists, though, one sees that the answer to the question of which ends can or cannot be justified is not to be deduced from the wider concept of human nature but from the narrower one of argumentation. With this, then, the peculiar role of reason in determining the contents of ethics can be given a precise description. Contrary to the role of reason in establishing empirical laws of nature, in determining moral laws reason can claim to yield results which can be shown to be valid a priori. It only makes explicit what is already implied in the concept of argumentation itself, and in analyzing any actual norm proposal its task is merely confined to analyzing whether or not it is logically consistent with the very ethics which the proponent must presuppose as valid insofar as he is able to make his proposal at all.
But what are the strictures of the ethics-implied-in-argumentation whose validity cannot be disputed because disputing it would implicitly presuppose it? Quite normally it has been observed that argumentation implies that a proposition claims universal acceptability or should it be a norm proposal, that it be “universalizable.” Applied to norm proposals, this is the idea, as formulated in the Golden Rule of ethics or in the Kantian Categorical Imperative, that only those norms can be justified that can be formulated as general principles which without exception are valid for everyone. Indeed as it is implied in argumentation that everyone who can understand an argument must in principle be able to be convinced by it simply because of its argumentative force, the universalization principle of ethics can now be understood and explained as implied in the wider a priori of communication and argumentation. Yet the universalization principle only provides one with a purely formal criterion for morality. To be sure, checked against this criterion, all proposals for valid norms which would specify different rules for different classes of people could be shown to have no legitimate claim of being universally acceptable as fair norms, unless the distinction between different classes of people were such that it implied no discrimination but could instead be accepted as founded in the nature of things again by everybody. However, while some norms might not pass the test of universalization, if enough attention were paid to their formulation, the most ridiculous norms (and what is more relevant even openly incompatible norms) could easily and equally well pass it. For example, “everybody must get drunk on Sundays or else he will be fined” or “anyone who drinks any alcohol will be punished” are both rules that do not allow discrimination among groups of people and thus could both claim to satisfy the condition of universalization.
Clearly then, the universalization principle alone would not provide one with any positive set of norms that could be demonstrated to be justified. However, there are other positive norms implied in argumentation apart from the universalization principle. In order to recognize them, it is only necessary to call to mind three interrelated facts. First, that argumentation is not only a cognitive but also a practical affair. Second, that argumentation, as a form of action, implies the use of the scarce resource of one’s body. And third, that argumentation is a conflict-free way of interacting—not in the sense that there is always agreement on the things said, but in the sense that as long as argumentation is in progress, it is always possible to agree at least on the fact that there is disagreement about the validity of what has been said. This is only to say that a mutual recognition of each person’s exclusive control over his own body must be assumed to exist as long as there is argumentation (note again that it is impossible to deny this and claim this denial to be true without implicitly having to admit its truth).
Hence, one would have to conclude that the norm implied in argumentation is that everybody has the right to exclusively control his own body as his instrument of action and cognition. It is only as long as there is at least an implicit recognition of each individual’s property right in his or her own body that argumentation can take place. Only if this right is recognized is it possible for someone to agree to what has been said in an argument and can what has been said be validated, or is it possible to say no and to agree only on the fact that there is disagreement. Indeed, anyone who would try to justify any norm would have to presuppose the property right in one’s body as a valid norm, simply in order to say this is what I claim to be true and objective. Any person who would try to dispute the property right in one’s own body would become caught up in a contradiction.
Thus it can be stated that whenever a person claims that some statement can be justified, he at least implicitly assumes the following norm to be justified: “nobody has the right to uninvitedly aggress against the body of any other person and thus delimit or restrict anyone’s control over his own body.” This rule is implied in the concept of argumentative justification. Justifying means justifying without having to rely on coercion. In fact, if one formulated the opposite of this rule (i.e., everybody has the right to uninvitedly aggress against other people [a rule, by the way, that would formally pass the universalization test!]), then it is easy to see that this rule is not and never could be defended in argumentation. To do so would presuppose the validity of precisely its opposite (i.e., the aforementioned principle of nonaggression).
It may seem that with this justification of a property norm regarding a person’s body not much is won, as conflicts over bodies, for whose possible avoidance the nonaggression principle formulates a universally justifiable solution, make up only a small portion of all possible conflicts. However, this impression is not correct. To be sure, people do not live on air and love alone. They need a smaller or greater number of other goods as well simply to survive—and only he who survives can sustain argumentation, let alone lead a comfortable life. With respect to all of these other goods norms are needed too, as it could come to conflicting evaluations regarding their use. In fact, any other norm now must be logically compatible with the nonaggression principle in order to be justified and, mutatis mutandis, every norm that could be shown to be incompatible with this principle would have to be considered invalid. In addition, as the things for which norms have to be formulated are scarce goods—just as a person’s body is a scarce good—and as it is only necessary to formulate norms at all because goods are scarce and not because they are particular kinds of scarce goods, the specifications of the nonaggression principle, conceived as a special property norm referring to a specific kind of good, must already contain those of a general theory of property.
I will first state this general theory of property as a set of rulings applicable to all goods, with the goal of helping to avoid all possible conflicts by means of uniform principles, and I will then demonstrate how this general theory is implied in the nonaggression principle. According to the nonaggression principle a person can do with his body whatever he wants as long as he does not thereby aggress against another person’s body. Thus, that person could also make use of other scarce means, just as one makes use of one’s own body, provided these other things have not already been appropriated by someone else but are still in a natural unowned state. As soon as scarce resources are visibly appropriated—as soon as somebody “mixes his labor” with them, as John Locke phrased it, and there are objective traces of this—then property (the right of exclusive control), can only be acquired by a contractual transfer of property titles from a previous to a later owner, and any attempt to unilaterally delimit this exclusive control of previous owners or any unsolicited transformation of the physical characteristics of the scarce means in question is, in strict analogy with aggressions against other people’s bodies, an unjustifiable action.
The compatibility of this principle with that of nonaggression can be demonstrated by means of an argumentum a contrario. First, it should be noted that if no one had the right to acquire and control anything except his own body (a rule that would pass the formal universalization test), then we would all cease to exist and the problem of the justification of normative statements simply would not exist. The existence of this problem is only possible because we are alive, and our existence is due to the fact that we do not, indeed cannot accept a norm outlawing property in other scarce goods next to and in addition to that of one’s physical body. Hence, the right to acquire such goods must be assumed to exist. Now if this is so and if one does not have the right to acquire such rights of exclusive control over unused, nature-given things through one’s own work (by doing something with things with which no one else has ever done anything before), and if other people have the right to disregard one’s ownership claim to things which they did not work on or put to some particular use before, then this is only possible if one can acquire property titles not through labor (i.e., by establishing some objective, intersubjectively controllable link between a particular person and a particular scarce resource), but simply by verbal declaration, by decree. However, the position of property titles being acquired through declaration is incompatible with the above justified nonaggression principle regarding bodies.
For one thing, if one could indeed appropriate property by decree, this would imply that it would also be possible for one to simply declare another person’s body to be one’s own. Clearly enough, this would conflict with the ruling of the nonaggression principle which makes a sharp distinction between one’s own body and the body of another person. Furthermore, this distinction can only be made in such a clear-cut and unambiguous way because for bodies, as for anything else, the separation between “mine and yours” is not based on verbal declarations, but on action. The observation is based on some particular scarce resource that had in fact—for everyone to see and verify because objective indicators for this existed—been made an expression or materialization of one’s own will or, as the case may be, of somebody else’s will. More importantly, to say that property could be acquired not through action but hrough a declaration would involve an obvious practical contradiction because nobody could say and declare so unless his right of exclusive control over his body as his own instrument of saying anything was in fact already presupposed, in spite of what was actually said.
As I intimated earlier, this defense of private property is essentially also Rothbard’s. In spite of his formal allegiance to the natural rights tradition, Rothbard, in what I consider his most crucial argument in defense of a private property ethic, not only chooses essentially the same starting point—argumentation—but also gives a justification by means of a priori reasoning almost identical to the one just developed. To prove the point I can do no better than simply quote:
Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of discussion, and hence the preservation and furtherance of one’s life takes on the stature of an incontestable axiom.