The Ethics of Liberty, by Murray N Rothbard. Adnotated. Part IV (Natural Law and Natural Rights)

As we have indicated, the great failing of natural-law theory -- from Plato and Aristotle to the Thornists and down to Leo Strauss and his followers in the present day -- is to have been profoundly statist rather than individualist. This "classical" natural-law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle's correct dictum that man is a "social animal," that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of "society" and "the State," and thence to the State as the major locusⁱ of virtuous action.ⁱⁱ It was, in contrast, the Levellers and particularly John Locke in seventeenth century England who transformed classical natural law into a theory grounded on methodological and hence political individualism. From the Lockean emphasis on the individual as the unit of action, as the entity who thinks, feels, chooses, and acts, stemmed his conception of natural law in politics as establishing the natural rights of eachⁱⁱⁱ individual. It was the Lockean individualist tradition that profoundly influenced the later American revolutionaries and the dominant tradition of libertarian political thought^iv in the revolutionary new nation. It is this tradition of natural-rights libertarianism upon which the present volume attempts to build.^v

Locke' s celebrated "Second Treatise on Government" was certainly one of the first systematic elaborations of libertarian, individualistic, natural-rights theory. Indeed, the similarity between Locke's view and the theory set forth below will become evident from the following passage:

[E]very 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, which begins the property; without which the common is of no use.^vi

It should not be surprising that Locke's natural-rights^vii theory, as historians of political thought have shown, was riddled with contradictions and inconsistencies. After all, the pioneers of any discipline, any science, are bound to suffer from inconsistencies and lacunae that will be corrected by those that come after them. Divergences from Locke in the present work are only surprising to those steeped in the unfortunate modern fashion that has virtually abolished constructive political philosophy in favor of a mere antiquarian interest in older texts. In fact, libertarian natural-rights theory continued to be expanded and purified after Locke, reaching its culmination in the nineteenth century works of Herbert Spencer and Lysander Spooner.^viii

The myriad of post-Locke and post-Leveller natural-rights theorists made clear their view that these rights stem from the nature of man and of the world around him. A few strikingly worded examples: nineteenth-century German-American theorist Francis Lieber, in his earlier and more libertarian treatise, wrote: "The law of nature or natural law . . . is the law, the body of rights, which we deduce from the essential nature of man." And the prominent nineteenth-century American Unitarian minister, William Ellery Charming: "All men have the same rational nature and the same power of conscience, and all are equally made for indefinite improvement of these divine faculties and for the happiness to be found in their virtuous use."^ix And Theodore Woolsey, one of the last of the systematic natural rights theorists in nineteenth-century America: natural rights are those "which, by fair deduction from the present physical, moral, social, religious characteristics of man, he must be invested with . . . in order to fulfill the ends to which his nature calls him."^x

If, as we have seen, natural law is essentially a revolutionary theory, then so a fortiori is its individualist, natural-rights branch. As the nineteenth-century American natural-rights theorist Elisha P. Hurlbut put it:

The laws shall be merely declaratory of natural rights and natural wrongs, and . . . whatever is indifferent to the laws of nature shall be left unnoticed by human legislation . . . and legal tyranny arises whenever there is a departure from this^xi simple principle^xii

A notable example of the revolutionary use of natural rights is, of course, the American Revolution, which was grounded in a radically revolutionary development of Lockean theory^xiii during the eighteenth century.^xiv The famous words of the Declaration of Independence, as Jefferson himself made clear, were enunciating nothing new, but were simply a brilliantly written distillation of the views held by the Americans of the day^xv:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness [the more common triad at the time was "Life, Liberty and Property"^xvi]. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it.

Particularly striking is the flaming prose of the great abolitionist William Lloyd Garrison, applying natural-rights theory in a revolutionary way to the question of slavery:

The right to enjoy liberty is inalienable. . . . Every man has a right to his own body -- to the products of his own labor -- to the protection of law. . . . That all these laws which are now in force, admitting the right of slavery, are, therefore, before God^xvii, utterly null and void . . . and therefore they ought instantly to be abrogated^xviii

We shall be speaking throughout this work of "rights,"^xix in particular the rights of individuals to property in their persons and in material objects. But how do we define "rights"? "Right" has cogently and tranchantly^xx defined by Professor Sadowsky:

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^xxi

Sadowsky's definition highlights the crucial distinction we shall make throughout this work between a man's right and the morality or immorality of his exercise of that right. We will contend that it is a man's right to do whatever he wishes with his person; it is his right not to be molested or interfered with by violence from exercising that right. But what may be the moral or immoral ways of exercising that right is a question of personal ethics rather than of political philosophy -- which is concerned solely with matters of right, and of the proper or improper exercise of physical violence in human relations.^xxii The importance of this crucial distinction cannot be over-emphasized. Or, as Elisha Hurlbut concisely put it: "The exercise of a faculty [by an individual] is its only use. The manner of its exercise is one thing; that involves a question of morals. The right to its exercise is another thing.^xxiii

1. This is entirely true, the state-centralist discussion of social order, power and oppression entirely misses the point of each item.

   The excuse is perhaps that for most of the history of this particular group (the barbarian states on the outskirts of Rome), education was provided by a super-statal "church" item, from Cluny to the United States and European Union. In the manner it is but natural for the five year old to imagine his father could beat up Hitler, it is then to be expected for a collection of mental five year olds to imagine the state as inheritor of the church as inheritor of Paul as inheritor of the Most Holy Spinning Celestial Teacup into entirely unwarranted importance. [↩]

2. For a critique of such typical confusion by a modem Thomist, see Murray N. Rothbard, Power and Market, 2nd ed. (Kansas City: Sheed Andrews and McMeel, 1977), pp. 237-38. Leo Strauss‘s defense of classical natural law and his assault on individualistic natural-rights theory may be found in his Natural Rights and History (Chicago: University of Chicago Press, 1953). [↩]
3. Not of each ; but only of some. Specifically -- those who think, feel, choose and act. [↩]
4. This supposed dominant libertarianism of the early Confederacy is very much like the supposed dominant pro-resistence, anti-Nazi outlook of mainstream, common everyday France either immediately before 1940, during 1940-1944, or immediately after 1944. In other words : "pious" fraud, perpetuated by a certain group, in furtherance of their propagandistic misrepresentation of F as L. [↩]
5. I expect the statement is both factual and correct. To quote,

   Yet you didn't know any of these things, and you didn't know them for the obvious fucking reason : the retelling of values as discovered by people throughout their time on Earth is a political act. You've absolutely no chance to encounter a fair recount of "historical human values", certainly no better chance than you have to encounter any other "just the facts". Consequently, all you will ever hear will be narrated -- and therefore false -- systems of values.

   [↩]

6. John Locke, An Essay Concerning the True Origin, Extent, and End of Civil Government, V. pp. 27-28, in Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960). pp. 305-7. [↩]
7. The problem with this naive "natural rights" theory is as follows : If I ride one day into a group of labourers digging acorns in the mud under an oak, and riding on pick one of the more fetching wenches found there in that natural state, and by my labours put something into her that wasn't there from her mother (Nature), she is therefore my property now, and supposedly as such to be defended by all those wretches at risk of life and limb. I'd do the same for them, surely...

   There's nothing wrong with the approach of "to the taker -- go the spoils", if this is what one aims to mean by "natural law", but it is indeed amusing a case of special pleading to pretend some kind of absolute difference, somehow god-given vaguely between the acorns, the sows, and the other sows found naturally intermingled in the mud under a secular, solitary oak. So : if it is his by right of having taken it, there shall be nothing but lords and their slaves under the sun.

   I suspect Rothbard might have meant something entirely different as "natural law", but to cut short a lot of blathering about how it's supposedly the nature of the acorn to fatten pigs (in preference of you know, sprouting more oaks) but it is not in the nature of the acorn-fed cunt to dance a merry jig in the buff for my amusement (in preference of you know, sprouting more acorn eaters), let us just say that property is not open to all, but only open to some.

   The ant right now feasting on the crumbs left in some obscure nook or cranny of my kitchen, and the slave right now enjoying the best coffee in the world do so by my sufferance, and not otherwise. I, as their Lord and soverign, I alone am capable of owning, and in this monopoly I own it all : crumbs, kitchen, ant and slave, undistinguished and undistinguishable in any fundamental sense. Any distinction I may make, I make alone and by myself, and it stands for them and above them as my thing, to them in nature divine. And should I change it, at any point and for any reason or for no reason at all ...

   Some are born to sweet delight. [↩]

8. Current scholars, ranging from Marxists to Straussians, consider Thomas Hobbes rather than Locke as the founder of systematic individualist, natural rights theory. For a refutation of this view and a vindication of the older view of Hobbes as a statist and a totalitarian, see Williamson M. Evers, "Hobbes and liberalism," The Libertarian Forum (May 1975): 4-6. Also see Evers, "Social Contract: A Critique," The Journal of Libertarian Studies 1 (Summer 1977): 187-88. For a stress upon Hobbes‘s absolutism by a pro-Hobbesian German political theorist, see Carl Schmitt, Der Leviathan in def Staatslehre Thomas Hobbes (Hamburg, 1938). Schmitt was for a time a pro-Nazi theorist. [↩]
9. Hurr. Really ? All ? The same ?

   That such nonsense should sprout forth from the feverish eyes of barely-literate South American "revolutionaries" a la Ernesto Guevara is one thing ; but this fellow won't stop with the by-page references and then purports to have arrived at his notions from some kind of study on nature ? What fucking nature did he look at, I wish to go visit this town, hamlet, factory, whatever the fuck it may be where all, each and every last dork had the same fucking powers to anything whatsoever.

   No, "we" are not "all god's children", if for no other reason then because I only fuck her when I feel like, this god of yours, and I kill most of her children anyway. What the fuck, equalitards everywhere. [↩]

10. Francis Lieber, Manual of Political Ethics (1838); Theodore Woolsey, Political Science (1877); cited in Benjamin F. Wright, Jr., American Interpretations of Natural Law (Cambridge, Mass; Harvard University Press, 1931), pp. 261ff., 255ff., 276ff. William Ellery Charming, Warts (Buston: American Unitarian Association, 1395), p. 693. [↩]
11. This actually fits remarkably well with my ""the state may exist inasmuch as and for as long as i can't tell it's there", but the important point is that at issue isn't some sort of abstract and universal "nature of man" as discerned who knows how and who knows where. At issue is the state's conformity to me, as the repository of humanity and the only possible state-giver. Just as grammar books exist to explain to the herd the exact manner in which poets, writers and other language creators use language, just so the state is there to convey the nature of humanity from me, the actual human, to the acorn chewers chewing acorns under the oak. It's a belt, and nothing more, to be thrown out as soon as it fails to work as expected or a preferable alternative was discovered. [↩]
12. Elisha P. Hurlbut, Essays on Human Rights and Their Political Guarantees (1845), cited in Wright, American interpretations, pp. 257ff. [↩]
13. You have to be batshit insane to imagine this is what said phenomenon was grounded in.

    The American Revolution was the situation where the Lordship load per oak-meter increased to the point where it was more efficient to have the rape of the acorn chewers organised locally, than to wait for communication from London. As fine a practical incarnation of this theory as you could wish for came in the shape of tea, and tea prices, for instance. [↩]

14. See Bernard Bailyn, The Ideological Origins of the American Emulation (Cambridge, Mass: Bellmap Press of Harvard University Press, 1967). [↩]
15. If this were so, the subsequent veteran mutiny will need some explaining. Or I suppose it could just be pretended into inexistence, right, as part of that L to F transition so very necessary in any serious R'. [↩]
16. The more common situation at the time was that a few held property and most hoped to come into some property later on. The situation was entirely unchanged at the time Mark Twain documented California, and as best I can make out of what agents tell me, it remains the case today, quite exactly. [↩]
17. Oh, before god, is it.

    Funny how god only seems to take an interest in human affairs when some nigger or other perceives the need to alter other people's domestic arrangements so as to increase his own importance in their eyes in spite of their own, similarily god given mind. [↩]

18. William Lloyd Garrison, "Declaration of Sentiments of the American Anti-Slavery Convention" (December 1833), cited in W. and I. Pease, eds, The Antislavery Argument (Indianapolis: Bobbls-Merrill, 1965). [↩]
19. This is a major problem, exactly for the reason explained in the discussion of the adventures of those oak-dwelling sows :

    The fundamental difference between freedoms and rights is that freedoms are immanent whereas rights are granted. Thus the public contractor bills which California refuses to pay represent rights of the respective economic agents that were granted by convention between the parties and are now being infringed by unchecked violence. Completely different from that, the freedom to shoot on sight any representative of the US president, whether mechanical or biological, does not result from convention, and for that matter predates both that country's present president as well as the country itself.

    My rights are rather inconsequential to me, a matter of trade -- I acquire rights to this plot of land or that for money, or dispose them similarily. Gaining some rights is one successful ship voyage away ; losing some rights is one bad harvest away. I have seen them come and go, and couldn't possibly care less.

    My freedoms however, sovereign and inalienable -- such as my freedom to keep slaves (just like the girls above discussed) ; or such as my freedom to fuck any woman I feel like fucking ; or such as my freedom to overturn any government I dislike ; or such as my freedom to take any life I would take, be it a bug or a god or anything in between -- are the only important matter. My freedoms are my actual substance. [↩]

20. The definition is neither. Let's revisit similar ass-clownery for edification :

    

    Rights are conventional, and as such a private matter. Their discussion in general terms will always fail, for the fundamental reason that there is no "absolute, immutable, and of universal validity for all times and places" anything about rights. For as long as I permit the elder slave to wear clothes, she'll have the right to wear clothes ; and no more ; and nothing further. That's the whole thing with these "rights", signalling mechanisms among the slavegirls themselves and naught more.

    [↩]

21. James A. Sadowsky, 3.1., "Private Property and Collective Ownership," in Tiber Machan, ed, The Libertarian Alternative (Chicago: Nelson-Hall, 1974), pp. 120-21. [↩]
22. The point that whether the slave has the right to wear clothes does not immediately dispose of the question of whether she should wear them, and how, and so forth is solid -- much ruin has been wrought upon intemperate heads through abuse of rights. Yet it's not clear the limit of political philosophy, as Rothbard calls it, is properly drawn at "exercise of physical violence".

    He correctly intuits, if vaguely and from afar, a substantial matter at the basis of the Republic, id est the forum-gyneceum distinction. Nevertheless, his approach fails in a number of important points :

    • Violence is its own justification ; and the loser is thereby wrong. I will not send troops to protect the imagined rights or freedoms of they who could not defend them themselves. If they knew they couldn't defend them in practice they should have had the sense to not pretend in theory ; if they thought they could defend them in practice and misjudged they should have had the sense to judge better. In any case : by the fact of having been defeated the loser is also wrong, and that's the whole story of violence.
    • The point of the forum is to offer guidance in a very ethical (what should I do ?) sense, for the everyday needs of a selected few (who are selected by their ability to correctly understand, and correctly apply, such guidance). Consequently, correct lumbar position in acuplation, proper ways to age meat or anchor an apple tree, plus a whole lot of math, physics, computer theory and so forth besides is eminently proper subject of political theory in the Most Serene Republic. This is not merely a theory, but actual historical practice, with numerous choices, behaviours and so forth of the participants influenced, oft times radically, by correctly reasoned and properly presented bits of political theory in this sense.

    I stand as unconvinced by Rothbard's graceless definition of political theory as I am unpersuaded by his inept preoccupation with the relatively minor matter of rights. [↩]

23. Hurlbut, cited in Wright, American Interpretations, pp. 257ff. [↩]