Six Reasons libertarians SHOULDN'T reject the Non-Aggression Principle

I saw in my Google+ stream multiple shares of an article recently written by Matt Zwolinski, over at libertarianism.org. In his article, the author gave six reasons why he thought the Non-Aggression Principle should be rejected by libertarians. I was curious, so I decided to read it and then give my rebuttal.

A note on terminology

Before listing his six reasons, Zwolinski claims that, "the libertarian armed with the NAP has little need for the close study of history, sociology, or empirical economics," because with just the NAP, every question of the government's involvement in the economy, from government roads to government schools, can easily be labeled as immoral.

I would disagree here already. First of all I have an issue with his terminology. Zwolinski refers to government provided goods as "public". Government schools, for example, are called, "public schools". I think the use of the word public confuses who actually owns and operates the schools. Regardless of how you vote, or whether you vote at all, those in government will continue doing what it is that they do.

They will not seek your consent when taxing (stealing from) you, when making rules about mandatory school attendance (kidnapping), when deciding next year's curriculum at their local indoctrination center for children, etc. As such, the use of the term "public", although popular, is part of the manipulative, Orwellian type of language that penetrates deep into how most people see the world; and something libertarians, if indeed Zwolinski sees himself as such, should avoid and seek to correct at every opportunity.

Is the NAP really the only argument libertarians use?

Secondly, although it is true that the NAP renders moral judgments regarding the State's participation in our lives fairly easy, I have yet to see anyone, myself included, convinced by that alone. There exists, in the minds of many people, the concept of a "necessary evil". You may successfully convince a Statist that the State is evil and immoral, but I seriously doubt that this will be sufficient to make them into a libertarian.

For that, you will require the second part of the one-two punch of libertarian argumentation - the practical argument. For this, knowledge of history, economics, and of how society works is of vital importance. I did not become an anarchist when I realized the NAP should be applied to individuals within the State as much as to individuals outside of it, but rather when I had investigated and understood how all of the myriad goods and services currently monopolized by the government can also be provided on a free market.

Next, Zwolinski mentions "political morality". This is interesting, as I consider the idea of two sets of morality - of two separate categories, a double standard if you will, to be the moral refuge of all scoundrels and thieves. They always think morality is something that applies to others, but not to them. Murder in war isn't really murder, it's "collateral damage".

Zwolinski says that, "there is a vast difference between a strong but defeasible presumption against the justice of aggression, and an absolute, universal prohibition."

Before continuing on to his six reasons, I can already tell you that everyone can imagine scenarios in which aggression can be justified in some way. If a cartoon-esque madman threatens to blow up the world if you don't kill just one individual, what do you do? Do you blindly follow the NAP and let billions die to save just one person, or do you initiate aggression? I'm sure there are many such scenarios.

So yes, of course exceptions can be made up for any rule. But what anarcho-capitalists try to achieve with the NAP is to not allow the institutionalization of those exceptions into an entire system of predation; a system that creates a separate moral class in society, who are not subject to the same moral rules as the rest of us, in other words - the State.

Now, let's go point by point

"1. Prohibits All Pollution – As I noted in my last post, Rothbard himself recognized that industrial pollution violates the NAP and must therefore be prohibited. But Rothbard did not draw the full implications of his principle. Not just industrial pollution, but personal pollution produced by driving, burning wood in one’s fireplace, smoking, etc., runs afoul of NAP. The NAP implies that all of these activities must be prohibited, no matter how beneficial they may be in other respects, and no matter how essential they our to daily life in the modern industrialized world. And this is deeply implausible."

Interesting. I wonder, "must be prohibited" by whom? I assume that in Zwolinski's hypothetical world, the NAP is already being systematically violated by the existence of a State, which would have the power to enforce such a prohibition throughout everyone else's property.

But let's go instead to a stateless society. How would people in a stateless society deal with pollution, and would there really be a blanket prohibition on the by-product of often incredibly useful human activity? No, of course not. Because people respond to incentives, and make cost-benefit analyses. Let me provide an example:

A company, let us call them the Polluter, operates a factory that produces widgets. Widgets, finding a place in everyone's home, prove to be very useful in alleviating some of the problems we run into through the human condition. Unfortunately, Polluter's factory is located upstream from a village of fishermen, and the pollution kills many of the fish, and poisons the ones that yet live. Let us say that in this particular arrangement, ownership of the river is divided into parts, with an area upstream being owned by the factory, and the area downstream being owned by the fishermen.

Free market resolution of pollution disputes

How is this conflict to be resolved? The fishermen are likely to begin by filing complaints with the Polluter. Perhaps the fishermen can convince them to change their production methods to be less polluting, or to more properly dispose of the pollution in the first place - not simply dumping it into the river. Already at this point the Polluter may decide to acquiesce to the fishermen's demands, seeing that an official dispute going through the courts might be time-consuming and costly (never mind a terrible hit to their public relations). But, let's say they don't.

The next step would probably involve third party arbitration. The fishermen choose a Dispute Resolution Organization, let us simply call it DRO, that can arbiter the conflict on their behalf. If the Polluter agrees to use the same DRO, then arbitration can commence. There is for example, in existence already, a small claims DRO called judge.me. They're pretty inexpensive, and 96% of the time the disputants agree to the terms without any further enforcement.

But let's say that the fishermen's DRO, let it now be called DROf, is unacceptable to the Polluter. Perhaps P thinks that DROf is biased, and will not arbiter the dispute fairly. Perhaps DROf are known for their pro-environmental agenda. So instead, they will choose their own DRO, called DROp. DROf and DROp can then get together and decide on a third party. Most likely, through past dealings, they already have agreements as to what third party to go to in case of disputes between them.

So far so good - this is simple anarcho-capitalist theory of dispute resolution. Now what? Well, the fishermen are of course in the right - P's pollution does in fact go onto their property in the river, and this causes damages to them. I would expect a fair court to rule in their favor, but then what? Is the court going to send armed men to shut down the widget factory? That seems implausible. Instead, a sum of money can be agreed upon as damages, to compensate the fishermen for all their troubles. This sum of money, let's say it is $5 million per year of pollution, is now the benchmark for what happens next.

If the widgets are so valuable, that profit from their production exceeds fines incurred due to negative externalities to third parties, then their production will continue. In this situation, it makes more economic sense to continue producing widgets (and paying fines for damages) than to halt economic activity. This is not the only option. P can also,

- learn to dispose of their pollution properly,

- move their widget factory to another place,

- change production methods to be less polluting,

- buy out the rest of the river so that they can own the property they are polluting,

If on the other hand widget production isn't all that profitable, and $5 million is well in excess of P's profitability and none of the other methods are any cheaper, then production will be stopped and P will choose to shut down the factory for good.

P, being run by reasonable businessmen, will choose whichever of the above is the cheapest. They have six options, ranging from continuing their pollution and paying regular fines, to shutting down for good.

Mr. Zwolinski, please put some more thought into your article writing. Obviously, a blanket prohibition would make no sense whatsoever, and only a true Statist would write something like, "The NAP implies that all of these activities must be prohibited," without making any mention of who the acting agent doing the prohibiting even is (through omission we can presume it is the State).

There are other cases, involving pollution in the air from smoke, car driving, etc., and they can also be solved in similar ways, providing it is possible to scientifically determine where the pollution is coming from (minute amounts of pollution in the air with no clear responsible party would be an exception, but this is a problem of reality, not the NAP). It would take a lot of time to write out how they can also be solved, but I'm sure the reader can do that themselves.

Note that, not only is there no blanket prohibition, but the question of pollution is now being rationally worked out based on its costs and benefits, and the polluter now has all the proper incentives to make an informed decision about how to deal with the problem. A government fine, or prohibition, often being arbitrary in nature, does not create these same incentives. This is the calculation problem all over again.

"2. Prohibits Small Harms for Large Benefits – The NAP prohibits all pollution because its prohibition on aggression is absolute. No amount of aggression, no matter how small, is morally permissible. And no amount of offsetting benefits can change this fact. But suppose, to borrow a thought from Hume, that I could prevent the destruction of the whole world by lightly scratching your finger? Or, to take a perhaps more plausible example, suppose that by imposing a very, very small tax on billionaires, I could provide life-saving vaccination for tens of thousands of desperately poor children? Even if we grant that taxation is aggression, and that aggression is generally wrong, is it really so obvious that the relatively minor aggression involved in these examples is wrong, given the tremendous benefit it produces?"

This point begins with a gross misunderstanding of aggression and consent. First of all, what might otherwise be considered a violation is permissible if it is consented to by all parties involved in it. Therefore, it is permissible to kill someone if they ask you to do that. This would be called assisted suicide. In our property rights example above, pollution would be acceptable (or not) depending on the consent of the parties involved. If the fishermen were happy with their $5 million yearly settlement, then the pollution could have continued (providing continuing to produce widgets was worth more than that). Clearly, whether something is or is not an aggression depends on what the property owner thinks.

Next, Zwolinski comes up with a somewhat plausible scenario, in which taxing billionaires (Zwolinski makes the tactically wise decision to not mention people who aren't super-rich, lest he upsets the majority of his audience), to save the lives of thousands of "desperately poor children".

Zwolinski precedes this point by talking about "lightly scratching your finger". Clearly, he doesn't view taxation as a particularly steep progression in violence from a finger scratch. But it is. Taxation is not simply theft - it is also everything that happens to you should you resist that theft. From beatings and kidnappings (arrest should you try to protect your property) to murder (if you decide to really protect your property). The State would not have been able to tax millions of people every year if it didn't make the occasional example every time a rebellious tax-resister decided to test the lengths to which agents of the system would go. Thus, taxation is the threat of murder. Almost every government law is, if you really think about it.

Do I think that murdering billionaires is acceptable to save thousands of children? No, I do not. Nor do I think this scenario makes that much sense in the first place, since Zwolinski provides us with no alternatives. Why is potentially murdering rich people the only solution? Can't we start a charity instead? Appeal to those with extra money to help? Volunteer our own time and money?

If Zwolinski's reality has no peaceful alternatives (or comical examples such as "I could prevent the destruction of the whole world by lightly scratching your finger?") then yes, you can come up with all sorts of justifications for violating the NAP. But at that point, you're already in the realm of fantasy. The NAP is a rule. All human-made rules can have exceptions. The problem isn't finding those in our imagination, it's finding them in our reality. While Zwolinski provides absurd examples with no peaceful alternatives, the aim of his argument is clearly to justify the existence of an entire system of violent predation (the State).

By the way, I understand people temporarily violating the NAP to save their lives. For example, I would understand if someone stole some food to survive, but their actions would still have been a violation of someone else's property rights, and it would be their duty to rectify the situation by paying the person restitution when they are able. I read a story a long time ago, of a homeless man breaking into a convenience store to steal some canned food. He left a note, saying he was sorry and would pay the owner back when he could. Some time later, I think it was a couple of years, he paid him back, with interest. This is the proper attitude to take, and I think the store owner would understand and empathize.

There are extreme situations in which moral rules are often suspended, as in the case of survival. But moral rules were not invented for those extremely unlikely and rare cases. Moral rules arose, among other things, out of real disputes and how they were resolved. This is why juxtaposing them with absurd or rare situations doesn't make much sense.

"3. All-or-Nothing Attitude Toward Risk – The NAP clearly implies that it’s wrong for me to shoot you in the head. But, to borrow an example from David Friedman, what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinner the cylinder, aiming it at your head, and squeezing the trigger? What if it is not one bullet but five? Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway (what if we suffer a heart attack, or become distracted), or when we fly airplanes over populated areas. Most of us think that some of these risks are justifiable, while others are not, and that the difference between them has something to do with the size and likelihood of the risked harm, the importance of the risky activity, and the availability and cost of less risky activities. But considerations like this carry zero weight in the NAP’s absolute prohibition on aggression. That principle seems compatible with only two possible rules: either all risks are permissible (because they are not really aggression until they actually result in a harm), or none are (because they are). And neither of these seems sensible."

If you point a gun at someone's head, even if only one of the chambers in the revolver is loaded, you are not merely "running the risk", you are threatening someone with harm, with forethought, with intent. This is very different from driving on a highway, in the sense that most drivers do not intend to hurt anyone else. They don't plan to have a heart attack while driving. It does happen, of course, but common law and dispute resolution obviously takes into account the difference between accidents and intent to harm.

In fact, a malum in se type crime is usually not said to have occurred unless there was mens rea, or a guilty mind. Why does Zwolinski think that in a legal system based on the NAP this would not be so?

"4. No Prohibition of Fraud – Libertarians usually say that violence may legitimately be used to prevent either force or fraud. But according to NAP, the only legitimate use of force is to prevent or punish the initiatory use of physical violence by others. And fraud is not physical violence. If I tell you that the painting you want to buy is a genuine Renoir, and it’s not, I have not physically aggressed against you. But if you buy it, find out it’s a fake, and then send the police (or your protective agency) over to my house to get your money back, then you are aggressing against me. So not only does a prohibition on fraud not follow from the NAP, it is not even compatible with it, since the use of force to prohibit fraud itself constitutes the initiation of physical violence."

This is more interesting. Now, in the type of fraud described above, it's true that the NAP alone isn't really enough. But, when you buy something, especially as expensive as a painting by Renoir, you will no doubt sign a contract, in which part of the seller's duty is to assume all responsibility for the validity of the information, at least to the best of his or her knowledge. In fact, I'm pretty sure this is the case even when buying minor items through, say, eBay. The NAP most certainly doesn't cover all of the law, or all of dispute resolution, but it was never supposed to. That's why contracts exist.

And providing you have a contract stipulating fraud be illegal, it would also (most likely) stipulate the punishments in case fraud is committed. Perhaps the sale is simply annulled and the money returned. Perhaps an additional fine is incurred. If this is indeed the case, then a violation of the contract (if you can prove it) would permit for violent restitution that would not classify as aggression. And if the seller disagrees, they can ask for third party arbitration first.

"5. Parasitic on a Theory of Property – Even if the NAP is correct, it cannot serve as a fundamental principle of libertarian ethics, because its meaning and normative force are entirely parasitic on an underlying theory of property. Suppose A is walking across an empty field, when B jumps out of the bushes and clubs A on the head. It certainly looks like B is aggressing against A in this case. But on the libertarian view, whether this is so depends entirely on the relevant property rights – specifically, who owns the field. If it’s B’s field, and A was crossing it without B’s consent, then A was the one who was actually aggressing against B. Thus, “aggression,” on the libertarian view, doesn’t really mean physical violence at all. It means “violation of property rights.” But if this is true, then the NAP’s focus on “aggression” and “violence” is at best superfluous, and at worst misleading. It is the enforcement of property rights, not the prohibition of aggression, that is fundamental to libertarianism."

Yes, property is the great problem solver, and a dispute must be placed in the proper context before it can be resolved. But I personally don't think that all of libertarianism (at least the moral half of it) rests on just the NAP. I think just as, or perhaps more important than the NAP, is the idea of self-ownership. Without self-ownership, we cannot even have the concept of aggression upon another person. And likewise, without self-ownership we cannot have external property rights, without which even talking about theft makes no sense. I would argue that self-ownership is primal to everything else, so in a way I agree - but I don't think that makes the NAP superfluous or misleading, that would be more a criticism of placing the NAP as the axiom than the NAP itself, something I don't see that many libertarians do.

"6. What About the Children??? – It’s one thing to say that aggression against others is wrong. It’s quite another to say that it’s the only thing that’s wrong – or the only wrong that is properly subject to prevention or rectification by force. But taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind."

I think this entire point is a straw man, although it's one that should be addressed anyway. Either the author is assuming that children are the property of their parents, and therefore breaking into the parent's property to rescue the children from mistreatment is aggression. If this is the case, then I would respond that children are not their parent's property, and that violating property rights to save an abused child is permissible. Take for example the case of kidnapping - in that case intervening to rescue that person is acceptable. Of course, it's difficult to determine consent when it comes to an infant who is unable to put their desires into words, but in this case pointing to the inability or unwillingness of the parents to meet the basic needs of the child (water, food) are enough.

On the other hand, the author is not claiming that children are their parents property, but posits the above dilemma because of the view that, "positive duties may never be coercively enforced" (a view he is critiquing). I, however, do not see how having a child is a coercively enforced duty. You have children, generally speaking, by choice. The obvious exception is rape, but even then it is possible to abort the child if you do not want to raise it. Should you carry the child to term, however, you implicitly accept the duties of a parent - a sort of guardian for another human being. You consent to these duties. Should you fail in them on some fundamental level, because of inability, then you should ask for help. If it is because of malice, then the NAP applies to the child who is being abused, and intervention is then not aggression, but defense of a third party.

I hope this clarifies things. I think that the author's boggled mind comes from misunderstanding and not really thinking things through, in most of the points above, rather than any kind of inherent fault with the NAP.

All in all, not only do I in varying degrees reject five out of Zwolinski's six points, but I think that the way they are written (and the amount of reasoning that went into them) serves only to paint a caricature of the NAP. I wonder if perhaps that was indeed the purpose - to create a straw man.

I also want to note, that a pro-freedom academic who derives pay from the plunder that is taxation (assuming that is indeed the case) exists in a state of painful cognitive dissonance. Either they must quit their current job and find voluntary work (there are plenty of voluntary teaching and research positions), or they must decide that initiating aggression is okay after all, as long as they're on the receiving end of the loot.

I wonder if personal motivations informed which of the two this writer has chosen. Regardless of what world-saving and child-vaccinating scenarios have been used in the original article, the author's actions (again, assuming his position is indeed paid for with taxpayer money) clearly indicate he believes his own current job to be in that set of life-saving exceptions to the NAP.

Although I will be the first to say that using an ad hominem is inappropriate when it comes to rebuking arguments, it is nonetheless worthy to note, at least in passing, what the personal motivations of the author may be. If a government employee whose livelihood depends on the taxpayers tells me that government is necessary, I won't be afraid to point out the conflict of interest. Unfortunately, most often people defend the existence of predation even as they are victims of it.

Update: I received a very helpful comment on my G+ share of this post (actually, several helpful comments), and decided to post one of them on here with permission from the author, Justen Robertson:

"The more salient point is that the principle does not create prohibitions, and indeed cannot create prohibitions, since prohibitions are themselves aggression. It only instructs on how to assign guilt and liability in the event of a dispute. The authors of both articles are still stuck in the statist conception of laws and legality, where one writes a rule on paper and then all persons are restricted from violating that rule by some invisible force (except, of course, for the "bad guys").

I expect that in a real world stateless society based around the NAP it would be violated regularly for a variety of good and ill intentions. For example, pushing someone out of the way of a bus is a violation of the NAP, while allowing him to die is (at least for many of us) a much greater moral ill. There are a few things that should be immediately obvious, but which may not be in the statist legalistic/absolutist mind.

First, the question is only raised if the "victim" of this act complains, which in most cases is not going to happen. Second, if the victim does complain, the NAP only says that he is entitled to compensation. In a restorative concept of justice, which is complimentary to the NAP (as opposed to a punitive system which arguably is impossible under the NAP), the question then becomes "how does the aggressor put the victim back in the place he would have been if not for the aggressor's violation of the NAP". In this case, clearly the aggressor is obliged to run the victim over with a bus. So, ok, go right ahead and resolve that situation, and then the victim's estate can deal with compensating the owner of the bus and its passengers for damages arising from his own negligent actions.

It doesn't take a whole lot of reasoning to figure out how all of this plays out in real life, but statism cripples reasoning."