Laissez-Faire Institute - Freedom Without Compromise

The impossibility of a non-libertarian philosophy of Law

We’ve previously discussed how laissez-faire is the philosophy of civilization, the philosophy of modernity, and the philosophy of mankind’s future. Past, present and future of humanity qua group of rational beings having evolved beyond wild animal life, built modern society, and getting ready to conquer death and colonize the stars, are thus inseparable from the libertarian philosophy of Law.

But what if, in fact, laissez-faire were simply the one and only philosophy of Law possible? Because evolving beyond the “might makes right” of the “law of the jungle”, the pragmatic nihilism as practiced by the wild beasts, is indeed by definition libertarianism? And because all the evil in the world, all the conflicts and injustices, can be fully blamed on failure to uphold that philosophy, to the partial and inconsistent application of it? To an unacknowledged and unsavory mixture of savage aggression and civilized, peaceful, lawful order? And because, therefore, laissez-faire, not only is the only philosophy that makes progress, civilization and advanced technology economically possible, but is also the only philosophy which is rationally defensible by members of the society of order that it makes possible?

Any political or anti-political philosophy is a philosophy of Law or anti-Law

Politics is about decreeing laws. In effect, in a legislature, people sit, discuss, and vote on laws. Political parties have differing programs on the content of laws. They may also have differing programs on electoral systems, on the type of regime, on parliamentary procedure, i.e., on the way of deciding laws itself. Politicians have differing opinions on what the laws should be, and depending on who is elected, the laws will change in one direction or another, or will not change, that is, will be maintained in the current state, favoring the status quo. Referenda, in a direct democracy, likewise consist in approving or rejecting constitutional amendments, that are then transcribed into legislation.

More generally, any political philosophy is based on the idea that a group of people can decree the content of Law, in the form of laws, and then impose those laws by force upon other people, whatever the content of those laws.

Any anti-political philosophy challenges the idea that some people could decree laws and impose them upon others. Libertarianism is an anti-political philosophy, that claims that no one has the right to make laws, in the sense of arbitrary, mandatory decrees that can be imposed even upon those who have not accepted them, even when contrary to Law.

Libertarianism contends that Law is not something to be decreed, but something to be discovered: Law with a capital L, because it is unique and universal. A constitution, a declaration of independence or one of human rights can, at most, enumerate and restate what are the rights of human beings, but by no means choose them. Some acts are just and others are unjust, it is a matter of discovering it, not decreeing it, just like an investigation or a jury are trying to discover who is guilty and who is innocent, not decree it at leisure according to one’s whims of the moment, the latest fad, or the socially close status (or lack thereof) of the accused. “Legislation”, “positive law”, or “laws”, shouldn’t even be referred to by the same word as Law. Claiming to prefer “positive law” over Law would be the equivalent, for the field of say, mathematics, of declaring “I am not interested in wondering how much is 1 + 1, finding out and calling this discovery process mathematics; I prefer to decree, according to my mood, that 1 + 1 is 3, or 14.5 depending on the day, and call this ‘positive mathematics’.”

In both cases, however, political and anti-political philosophies can be stated as theories of what Law is, or should be, i.e., as philosophies of Law... or anti-Law, insofar as the purpose of political philosophies is not to discover Law, but to destroy it. We can therefore write: libertarianism is an anti-political philosophy of Law, non-libertarianisms are political philosophies of anti-Law1.

Any philosophy of Law is a theory of property rights

Any political philosophy that is not construed as a theory of property rights fails entirely in its own objective and thus must be discarded from the outset as praxeologically meaningless.

Hans-Hermann Hoppe2

Laws are enforced through violence: laws are a list of behaviors against which armed policemen may use violence. Similarly, rights can be defended against those who violate them. Any law, any right raises the question: is it legitimate to use violence against a person who violates this law or that right?

Why? Because the purpose of Law (or the laws that purport to replace Law) is precisely to determine who has the right to do what with what. Answering this question is precisely the research program of the philosophy of Law, and therefore the applied program of any political party or anti-political movement. If one doesn’t answer the question, then one remains in the default situation, which is not to ask this question, and to act as one sees fit in all circumstances.

If one answers it, however, whether in a political or an anti-political way, then one must answer the question who has the right to do what, with what, and under what circumstances, and above all: who has the right to use violence, against whom, and in which cases. All those questions are by definition a matter of Law, and of property rights: in discussing these questions, one necessarily claims that someone has the right to decide how to dispose of the objects and the people that make up the world.

If one answers “nobody”, then one also remains in the original situation, which is that one has not developed a theory of Law, i.e. nobody has the “right” to do anything, nobody asks the question, and everybody acts as they please. By default, we can all breathe, talk, walk, etc., but to be able to say “I have the right to breathe, talk, walk, etc.”, one has to introduce a theory of property rights.

Any consistent theory of property rights is libertarian

There can no such thing as a consistent “anti-libertarianism”.

François Guillaumat, La rationalité comme seul critère de distinction entre les normes politiques

And indeed: to be able to say “I have the right to breathe, talk, walk, etc.”, one must not only introduce a theory of property rights, but a libertarian theory of property rights. By definition of Law, of property and of property rights, to say “I have the right to breathe, talk, walk, etc.” implies to recognize oneself as the owner of oneself. Indeed, otherwise, one would first have had to apply for permission to the owner, or owners, of oneself, which would have been the owners of one before oneself–for a reason and by a procedure which would yet have to be justified.

Everyone thus considers oneself owner of oneself, which is indeed the foundation of libertarianism. The only question then remains: does one recognize this right to others?

Dodge zero: Inconsistency

Rights are conditions of existence required by man’s nature for his proper survival qua man—i.e., qua rational being.

Ayn Rand, Requiem for Man

For indeed, to legitimately claim to use the concept of Law, that is to apply it to oneself, to say for instance, “I have the right to”, one must recognize the validity of the concept.

For one can of course choose to express oneself without accepting rationality, consistency, the law of identity, etc. But then, one does not actually talk in order to rationally convince other rational beings into adopting a given theory of Law, that is to respect one’s rights. But then, why debate at all? If one does not accept the laws of identity, of non-contradiction, etc., then how are one’s words worth more than their complete opposite? Why then speak at all?

To give up elementary logic when one articulates ideas is to “talk” as a mere animal making noise with its mouth. Once again, one can make that choice, but one cannot claim to use the concept of Law and of property without accepting their premises.

Everyone has an interest in a society of rules: No one wants to be at risk of being killed by anyone, with impunity. But some people want their cake and to eat it too, that is, a society where there are rules (nobody has the right to kill them) and they are above the rules (they and they alone have a license to kill). The problem is that this position is untenable: to claim that rules may only apply sometimes to some, according to random criteria, is not to have conditional rules, but is to give up on rules altogether. In other words: it is nihilism.

Dodge one: Nihilism

Nihilist: “It's not fair!”
Walter Sobchak: “Fair?! Who’s the fucking nihilists around here, you bunch of fucking crybabies?”

The Big Lebowski

Whether one should fall into nihilism through enactment of confused and inconsistent rules, or whether one should choose it knowingly from the start, what matters is to acknowledge the consequences.

For like the nihilist of the above movie, he who has renounced the concepts of Law, justice or fairness will be rightly accused of stealing concepts whenever he claims those same concepts in his favor. Ultimately, to ignore other people’s rights implies to renounce the use of rights and Law–even for oneself.

Thus, one can well imagine a nihilistic society that does not know the concept of Law, and no one raises the question of who has the right to do what. One can surely choose to be nihilistic, but then one won’t be able to oppose any argument but force to all aggressors, be they mere thieves and murderers or ominous dictators.

In practice, therefore, nihilism leads to a very pragmatic rule: might makes right.

Dodge two: Might makes right

Might makes right

Now this is the law of the jungle, as old and as true as the sky,
And the wolf that shall keep it may prosper, but the wolf that shall break it must die.

Rudyard Kipling

For if there are no rules, the pragmatic rule that shall prevail is that the strongest, through his might, will impose his rules unto others, and thus will always be “right”3. But then, what will even the strongest dictator have to say against the assassin that slays him, therefore proving that he is now (for the time being) the strongest?

In other words, the dictator is legitimate as a dictator... But it is just as legitimate to assassinate him–provided you succeed.

Dictators are well aware of that, and indeed do not claim to live by “might makes right”. Instead, they acknowledge a theory of Law: one form or another of the Divine Right theory of Law. For indeed, they do know the pitfall of “might makes right”: to live by that rule is also to die by it.4

“Put your sword back in its place,” Jesus said to him, “for all who draw the sword will die by the sword.”

Matthew 26:52

Dodge three: Divine right

Billy Fish: “He wants to know if you are gods.”
Peachy Carnehan: “Not gods–Englishmen. The next best thing.”

The Man Who Would Be King

It is therefore no coincidence that dictators surround themselves with myths, prestige, beliefs, superstitions and rituals. In the quoted movie, the main character is accepted as king–up until an injury makes him bleed, thus proving his human nature. It is no coincidence that pharaohs claimed to be scions of gods, and medieval kings claimed to rule by divine right, and had to ensure the support of the Catholic Church which blessed their reign.

All is set up to create the illusion of their being Übermenschen, supermen having rights over us that we would not have over them. It is no coincidence; indeed, it is a necessity: it is the only way to escape both nihilism and the universality of Law, thus being able to uphold the identity of the rights of Untermenschen on one side, and of Übermenschen on the other (and ideally, being the only Übermensch around).

It is no coincidence either that slavery is systematically practiced on individuals of other “races”, tribes, or religions, who supposedly have no soul (unlike us), or are “infidels”, which would give us God’s blessing for enslaving them.

In other words, to pretend to rule over others, or enslave others, one must either be himself godlike, or hold a divine blessing which one’s subjects, slaves or “citizens” would not have.

The objective is thus indeed to have both a society of Law, and to be exempt from its rules (or conversely to have some people exempt from its protection), in other words, to enjoy an asymmetrical relation of authority.

Indeed, no one would be willing to accept a society of symmetrical slavery, in which the slave-master roles could switch every minute (and even if some devout democrats actually were, it would still not give them the right to impose it–asymmetrically– upon those who are not)... Neither a society of symmetrically allowed theft:

But you know, some people actually cheat on the people that they’re cheating with. Which is like, you know, being in a hold-up and then turning to the robber next to you and going: “Alright, give me everything you have, too”.

Seinfeld

But, if on the other hand some wish to exert an asymmetrical relationship of rule through divine right, they would have to prove:

  1. That this difference between us and them indeed exists (God blessed them and not us);
  2. That this difference is relevant from the point of view of Law (for even if the first point were true, we could still answer them with: so what);
  3. That this difference indeed gives them over us the rights they claim to have (even if we admitted the existence of the difference, they would still have to prove that this difference allows them to draw the exact conclusions they draw from it).

Quite a lot to prove indeed. And the burden of proof is on the constructivists: they have to prove why they would have over me rights that I would not have over them.

Non-libertarianism is a nihilism

Non-libertarianism, as a consistent philosophy, is therefore impossible. The various anti-libertarian philosophies are nothing but masked nihilisms, philosophies of anti-Law.

And do not be deceived: there can be no order but spontaneous. Totalitarian regimes are not a form of order, but of chaos: a society of arbitrary power, not of rules. Totalitarianisms are not rule-based societies, nor logic-based societies, anymore than they are ordered or lawful societies5. They do not constitute the opposite of the nihilist anomy, but instead, simply, yet another form of savagery, of unlawfulness, of rejection of the libertarian universalism. It is thus certainly no coincidence that totalitarian regimes invariably end in an unprecedented dislocation of organized civilization, a boundless disorder, utter chaos. Socialism is indeed the abolition of rational economy, statism of rational society, and constructivism, of rational civilization.

The so-called “anarcho-primitivists”, the democrats and other “moderates”, and the totalitarian (national-)socialists of all parties, all brands of constructivists share a common end: the destruction of Law qua set of non negotiable universal rules applicable to all, and thus the sabotage of the foundational accomplishment of rational human civilization.

It is no coincidence, either, that all of them share the same hatred of the civilized values that Law embodies and furthers: consistent rights–libertarianism; acknowledgement of the identity of rights of all humans–consistent humanism; the market, free trade, creative work, accumulation of capital and growth–capitalism; and last but not least, the peaceful order that results from voluntary cooperation–laissez-faire.

A man who chooses between drinking a glass of milk and a glass of a solution of potassium cyanide does not choose between two beverages; he chooses between life and death. A society that chooses between capitalism and socialism does not choose between two social systems; it chooses between social cooperation and the disintegration of society. Socialism is not an alternative to capitalism; it is an alternative to any system under which men can live as human beings.

Ludwig von Mises, Human Action: A Treatise on Economics

Nihilism or laissez-faire, state of nature or society of order, lawless State or lawful state, might makes right or human rights, barbarism or civilization: some choices are that simple.