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Discourses on Social Order

Critique of The Machinery of Freedom,
Chapter 41: Problems

This is the first of three essays of comment on the chapters of The Machinery of Freedom: Guide to a Radical Capitalism (MoF), by David Friedman, which I (Paul Antonik Wakfer) consider to be the most important for libertarian theory among those chapters of MoF which are online. While in general my own viewpoint on "rights" is very much in tune with that of David Friedman, I have some important differences with his presentation in these chapters. More importantly, I have been able to create and develop some original ideas into a system which I think is a complete and comprehensive solution to the foundational problems which he raises.1 To my knowledge, although over 30 years have gone by since Friedman's excellent exposition of these problems (which I also independently realized as far back as the late 1970s) neither he nor anyone else has (until now) fully answered his objections to libertarian foundations and fully resolved the problems which he poses prior to this time.

Friedman's text is on the left side below and my comments about any particular part are on the right, where I have broken his text. I have numbered each comment which involves a separate point. Text on the left with no comment on the right indicates that either I agree with what Friedman says, I have no knowledge about or interest in it, or that it is essentially one more example which I have already addressed or will next do so. Except rarely, I do not give specific examples (as Friedman has done) because the number of fundamentally different cases and options stemming from them is so vast (unbounded in size, in my opinion) that I think any set of examples will omit and mislead more than it elucidates. In fact, this is a general criticism with the approach which Friedman has taken here and about which I give specific comments and criticisms for particular examples. Therefore, most of my reasoning will be in general terms with the examples left for the reader and as challenges to me if s/he can not see that they are special cases of any general argument that I have made.

Chapter 41: Problems2

Many libertarians appear to believe that libertarianism can be stated as a simple and convincing moral principle from which everything else follows. Popular candidates are "It is always wrong to initiate coercion" and "Everyone has the absolute right to control his own property, provided that he does not use it to violate the corresponding rights of others." If they are right, then the obvious way to defend libertarian proposals is by showing that they follow from the initial principle. One might even argue that to defend libertarian proposals on the grounds that they have desirable consequences, as I have done throughout this book, is not only a waste of time but a dangerous waste of time, since it suggests that one must abandon the libertarian position if it turns out that some coercive alternative works better.

1) While these are insightful comments, they leave more unstated than stated (and also not included in what follows) about the problems with libertarian foundations. For example, in the variant of the non-aggression principle which is stated above (and every other version one sees), the major problem is one of interpretation. What is sorely needed, and never seems to be provided, is a precise and fully unambiguous definition of such words as "wrong", "initiate" and "coercion" which can be understood and used by all libertarians to decide in every case whether or not a culpable act has occurred. (A "culpable act" being defined as a human act that should be inhibited or punished by some method within all reasonable social ordering systems - ie. as one which is "actionable".)3 By saying: "If they are right" about such simple moral principles, Friedman completely ignores this major problem about the lack of any clear and unambiguous meaning of such principles. Neither libertarian proposals, nor any other kind of proposals can be based on principles which are inherently unclear and ill-defined. Next, Friedman himself leaves completely undefined (here at least) the meaning of "desirable consequences" which such principles, and the proposals they imply, are supposed to necessarily generate. Finally, Friedman makes the assumption that it might be possible in reality "that some coercive alternative works better"; whereas I contend that this is, in fact, not possible if "coercion" and "works better" are defined clearly, unambiguously and consistently with respect to human reality. If initiation of coercion is "bad" in principle (by which I mean that it will always reduce the lifetime happiness of some human, as rationally judged by that human for himself), then no coercive alternative can be good (ie. "work better"). On the other hand, if this is not true (ie. initiation of coercion is not bad in principle), then the non-aggression principle is not longer valid (ie. is not a principle at all) and should be dropped in favor of a different one which is valid. Is this what Friedman is arguing for? He never quite makes that clear. Just as one cannot work in the sciences only with the data from experiments without a theory to explain that data and not be on shifting sands, in the same way and for the same reasons one cannot achieve confidence about rules for optimizing human relationships if one does not have a theoretical structure to explain the data of human behavior from which those rules can be derived.1

One problem with deducing libertarian conclusions from simple libertarian principles is that simple statements of libertarian principles are not all that compelling. Lots of people are in favor of initiating coercion, or at least doing things that libertarians regard as initiating coercion. Despite occasional claims to the contrary, libertarians have not yet produced any proof that our moral position is correct.

2) "Not all that compelling" is an understatement for assertions which are not even well-defined! Otherwise, I completely agree with Friedman's assessment and would even go further (as he does later) and say there are situations in which almost every libertarian would initiate coercion and even think it was the "right" thing to do! On the other hand, if the libertarian "moral position" is correctly defined and expressed, then I think that a "proof" of it is possible and even that I have accomplished it.1

3) However before proceeding further, I must make an aside in order to object to Friedman's constant use, here and elsewhere, of the plural pronouns "our" and "we" to refer to collections of people which are either not fully defined or do not all have the attributes which he appears to impute to them by the use of such a collective term. For example in the above, the use of "our" presumably means "all libertarians" and implies that Friedman considers himself to be one of that class of humans. However, many of those who call themselves libertarian do not have the same moral position as Friedman and others in that class. This is particularly true since so few people ever adequately define and describe their moral positions.4

A second problem is that simple statements of libertarian principle taken literally can be used to prove conclusions that nobody, libertarian or otherwise, is willing to accept. If the principle is softened enough to avoid such conclusions, its implications become far less clear. It is only by being careful to restrict the application of our principles to easy cases that we can make them seem at the same time simple and true.

4) The problem to which Friedman refers, "that simple statements of libertarian principle taken literally can be used to prove conclusions that nobody, libertarian or otherwise, is willing to accept", is not strictly related to such principles being "taken literally". The problem also arises when such "principles" are given the many interpretations which are possible from the various meanings that the words used to state them may reasonably be taken to have, unless clear and strict definitions of those words have been given. One of the most damning criticisms of libertarian political theory is that such precise, clear definitions are not given to terms before or as part of their use.

5) The restriction of libertarian principles "to easy cases" has also been a major flaw in the foundational writings of libertarian philosophers, and the need for such restriction should have shown those philosophers that their proposed "foundations" are both inconsistent and incomplete. Ayn Rand is a typical case in point with her dismissal of "life-boat" situations as irrelevant and insignificant to her philosophy.5 Far from being insignificant and unimportant, just as exceptions are what generate new scientific theories, so too with theories of social order. Deep and insightful analysis of extreme cases (in mathematics called boundary situations) will often generate the original and comprehensive general principles which can then be used to explain and understand many cases outside of those under analysis. Thus, it is essential that such life-boat situations are carefully examined and fully included within a social theory if it is to be applicable to all human social reality.

The easiest way to demonstrate this point is with a few examples. In order to define coercion, we need a concept of property, as I pointed out at the beginning of this book--some way of saying what is mine and what is yours. The usual libertarian solution includes property rights in land. I have the absolute right to do what I want on my land, provided that I refrain from interfering with your similar right on your land.

6) I think that the statement "In order to define coercion, we need a concept of property" is fundamentally incorrect. In the Natural Social Contract3 (NSC) some violations are fully defined using only the notions of "effective cause", "duress", "culpable harm", and "breach" (of contract) - which notions are also clearly defined in NSC. Only the violations of "duress" and "culpable harm" involving property (but not one's person) and of pure trespass (no clear harm involved) over the physical extent of property requires a concept of property. It should be noted that in NSC I do not treat a human being as any kind of property even of himself. My main reason for not doing so is that to treat a human being as property allows the possibility that one person can be "owned" by another.

7) In his Introduction to MoF, where Friedman first maintains that coercion and property are inextricably linked, he writes: "If we consider that each person owns his own body and can acquire ownership of other things by creating them, or by having ownership transferred to him by another owner, it becomes at least formally possible to define 'being left alone' and its opposite, 'being coerced.'" and later: "A man who prevents me from taking heroin coerces me; a man who prevents me from shooting him does not." However, both of these examples have problems with respect to the definition of coercion which is given. For the first, a person might think that someone who takes heroin is a threat to him. For the second, until the man has actually shot someone he has still fully "left him alone" and so the person acting in self-defense to prevent him is the initiator of force himself - ie. the coercive agent according to Friedman's definition. These examples illustrate the fundamental bankruptcy of even these most basic of libertarian principles as they are currently phrased.

But what counts as interfering? If I fire a thousand megawatt laser beam at your front door I am surely violating your property rights, just as much as if I used a machine gun. But what if I reduce the intensity of the beam--say to the brightness of a flashlight? If you have an absolute right to control your land, then the intensity of the laser beam should not matter. Nobody has a right to use your property without your permission, so it is up to you to decide whether you will or will not put up with any particular invasion.

So far many will find the argument convincing. The next step is to observe that whenever I turn on a light in my house, or even strike a match, the result is to violate the property rights of my neighbors. Anyone who can see the light from his own property, whether with the naked eye or a powerful telescope, demonstrates by doing so that at least some of the photons I produced have trespassed onto his property. If everyone has an absolute right to the protection of his own property then anyone within line of sight of me can enjoin me from doing anything at all which produces light. Under those circumstances, my "ownership" of my property is not worth very much.

A similar problem arises with pollution. Libertarians sometimes claim that since polluting the air over anyone else's property is a violation of his property rights, pollution can be forbidden in a libertarian society except when the polluter has the consent of the owners of all affected land. This argument is used to attack schemes such as effluent fees (discussed in Chapter 26), which are designed to limit pollution to its economically efficient level--the point at which further reductions cost more than they are worth--but not to eliminate it.

Here again, the problem is that an absolute right to control one's property proves too much. Carbon dioxide is a pollutant. It is also an end product of human metabolism. If I have no right to impose a single molecule of pollution on anyone else's property, then I must get the permission of all my neighbors to breath. Unless I promise not to exhale.

8) The source of the problems that Friedman ably illustrates here is an improper definition of what entitlements are entailed within the meaning of the term "property (called "real estate" in the NSC) ownership" - the need to begin with a correct definition of such ownership rather than trying to apply after the fact limitations to a definition of absolute ownership which is clearly impossible to be mutually consistent with that same absolute ownership of others. The NSC solution to these problems is a comprehensive and clear definition of real estate as a volume of space which is defined by boundaries delineated by fixed coordinates relative to the surface of the Earth, the entitlement of which is not completed (ie. it does not exist as owned real estate) unless and until boundary covenants are made (or declared if unowned) with all abutting such properties.3 Under the NSC real estate ownership is not a right but an "entitlement" which all members of the society (executors of the NSC) grant to a person who has correctly established such ownership. No one in his right mind would ever grant absolute entitlement to do anything at all on property precisely because such acts could negatively impact neighbors, just as Friedman has described. This definition of real estate and its operational results solve the inconsistencies of most alternative libertarian definitions of property with respect to all manner of usages which cause or allow energy or matter to cross property boundaries.

The obvious response is that only significant violations of my property rights count. But who decides what is significant? If I have an absolute property right, then I am the one who decides what violations of my property matter. If someone is allowed to violate my property with impunity as long as he does no significant damage, we are back to judging legal rules by their consequences.

9) Certainly, the only person who can decide what is significant is the real estate owner himself. However, he must decide it before he gains ownership, not after. Part of his buying decision is based on the results of that process of attempting to establish the covenants (or seeking alterations of existing covenants) with abutting real estate owners that his wishes for the particular piece of real estate or simply accepting those which already established. Once this process is complete and he makes a decision to purchase then he is contractually bound to the limitations of ownership inherent in those covenants.3 This method completely avoids judging real estate transgressions of the kind the Friedman has raised, by after-the-fact assessment of their consequences, since the rules relating to types and amounts of transmissions across real estate boundaries are established in advance.

A similar problem arises if we consider effects that are small not in size but in probability. Suppose I decide to play Russian roulette, with one small innovation; after putting one cartridge in my revolver and spinning the cylinder, I point it at your head instead of at mine before pulling the trigger. Most people, libertarian or otherwise, would agree that you have every right to knock the gun out of my hand before I pull the trigger. If doing something to someone (in this case shooting him) is coercive, then so is an action that has some probability of doing that something to him.

10) Friedman's problem here is the result of attempting to place the term "coercion" at the base of all moral thinking (just as most libertarians do). Making disallowance of initiated coercion a fundamental axiom and then needing to limit such disallowance (so that you are allowed to make a "preemptive strike" to prevent harm) is inconsistent on the face of it, and is bound to create "problems", just as Friedman indicates in this example. Instead what needs to be at the base of all moral thinking are the optimal actions to take which will maximize human happiness for all together. When seen from this base, coercive acts should be generally not initiated, because they cause harm. However, if an individual decides that a coercive act (such as a defensive action) is necessary to prevent harm to him or his property, then he will take it and know that he must be responsible for its consequences. If his evaluation of necessity to prevent harm from the other is later validated, then his action will be blameless, he will have made the right decision (ie. one which increases his lifetime happiness) and he may even collect restitution for the costs of his efforts. If his evaluation is shown to be invalid, then he has made the wrong decision and will have to restitute the other for any harm done to him. It is in this sense of total responsibility for one's actions that there is nothing absolute about the morality of any particular actions.

But what if the revolver has not six chambers but a thousand or a million? The right not to be coerced, stated as an absolute moral principle, should still apply. If libertarianism simply consists of working out the implications of that right, then it seems to imply that I may never do anything which results in some probability of injuring another person without his consent.

11) Part of the reason for the inconsistencies inherent in such situations as Friedman poses here is that such situations are "unreal" by nature of their incompleteness, in as much as no information is given concerning upon whose real estate the event is taking place. Once this additional information is supplied, the problem becomes solvable precisely because it becomes real. The owner of the real estate would set the terms of behavior for anyone on his property and the market of evaluating the decisions and actions of individuals would decide how much concern about certain actions is reasonable. Nevertheless, once such terms of behavior are decided by the real estate owner and made clear to anyone coming onto his property, since the contract of rules of behavior on the property would have been breached by such transgression, this would be a violation (once proven at a trial if necessary). After that it would be a matter of the owner of the real estate determining the amount of harm done by a transgression of such rules by the visitor/customer, and the amount of restitution owed (which might well be also stated in the contract which the visitor/customer agreed to before entering the real estate). Though this may sound very complicated, it could all be made quite simple and semi-automatic by using a system of standardized rules of behavior promulgated by companies who specialize in that kind of service.

I take off from an airport in a private plane with a cruising radius of a thousand miles. There is some (small) probability that my instruments will fail, or I will fall asleep, or for some other reason I will go wildly off course. There is some probability that the plane, having gone off course, will crash. There are things I can do which will reduce these probabilities, but not to zero. It follows that by taking off I impose some (small) probability of death and destruction on everyone through whose roof I might crash. It seems to follow from libertarian principles that before taking off I must get permission from everyone living within a thousand miles of my starting point.

12) The very same approach regarding covenants on abutting real estate (which includes airspace) as in my last comment can be used to solve Friedman's example here. The most essential point is not the absolute right to prevent any risk to one's life or property (which "right" does not exist in the NSC), but the absolute requirement of anyone who is the effective cause of culpable harm to restitute for all harm done to the extent to which that is physically possible. In this manner, the risk/gain evaluations of individuals are what ultimately decides what events take place and what do not. The purpose of the NSC is to provide a social environment where a pure free market of decision making can operate. That is why this environment is said to supply the optimal social meta-needs of humans.1

I am not claiming that libertarians who argue from rights rather than from consequences believe that you cannot light a match on your own property, or fly an airplane, or breathe out; obviously they do not. My point is that simple statements of libertarian rights taken literally lead to problems of this sort.

13) At this point I wish to bring the reader's attention to Friedman's continuing use of the verb "believe" which I am assuming that he means in the sense of "hold to be true" rather than in the sense of "have unfalsifiable faith in". However, even the application of the first definition of that word is in Friedman's example an inappropriate description of one's ability or of one's freedom to take or not to take certain actions. Surely no one even thinks that one cannot "light a match on your own property". If you have matches and real estate and if the matches are not so wet that they will not light, then most assuredly you can light them - ie. you have the freedom to light them. All that any rule or law against lighting them would mean is that your cost/benefit evaluation for doing so is changed (ie. your liberty has been thereby reduced). However as in Friedman's example, if your neighbor, who has a special need for low light at some point next to your real estate, has made a covenant with you concerning the light during certain hours of the night, say, and then you still go and light your match, you have broken the covenant contract and will be responsible for any harm. If you happen to know he is away and no harm is done, then you should incur no penalty. However, if harm is done you will be responsible for whatever actions are specified for breach of the covenant, which likely include restitution of all damage and perhaps include some additional penalty. The exact same approach applies to Friedman's breathing out carbon dioxide and airplane examples.

14) Under the Natural Social Contract real estate is not fully defined, and no person is entitled to own it, until it includes covenants with abutting real estate concerning the amounts of various energy forms, gases, liquids and solids which are allowed to cross any common boundary before damages may be sought. In the same manner, the neighboring real estate will have covenants with their neighbors, etc. In this manner acceptable pollution standards are worked out by a free market of exchanges between the real estate owners in any given area (likely after consulting some expert service company which has made a study of just what amount of which kinds of energy forms, gases, liquids and solids are safe and tolerable in that locale). Yes, there will sometimes be real estate which is located on the edge between two different sets of standards, but that is reality. There are always going to be boundaries where changes take place. Such real estate will simply need to absorb some of the inflow from one side and not let it over the other. That will be a requirement of ownership of that real estate. It should be recalled at this point that I am talking about real estate as a volume of space with fixed coordinates defined boundaries. Therefore, there is also abutting real estate below and above any given piece of real estate, even if neither of them is yet owned (as could also be the case for any real estate abutting horizontally). Any covenant with respect to unowned abutting real estate is obviously not actionable, but merely serves to inform the prospective owner of that real estate what will be his boundary requirements and responsibilities for that real estate.

15) With the ownership and covenanting of real estate thus established, Friedman's airplane example problem can now be tackled and solved. Either the real estate above one's property will be owned (perhaps by a skyways consortium company) or it will still be unowned. In the former case, the owner of the sky real estate will have made covenants with the owners of the real estate with which his sky real estate abuts concerning various conditions of use and safety, etc. which will be also part of the contract under which airplanes are allowed to use the sky real estate. Now it can be seen that simple contracts between owners and users of real estate will ensure both the required safety and the necessary restitution if accidents should happen. However, if the sky real estate is unowned, there is much more of a problem, because the owner of the land real estate under it has no assurance of any safety concerning what transpires in that sky real estate. Therefore, it would only be after the fact, that such land owner could claim restitution from the owner of the airplane which damaged him or his real estate contents. This example shows that any real estate abutting unowned real estate would generally be of less value precisely because there is no owner on the other side of the boundary to set standards and assure adequate conditions at that boundary.

One can avoid such results by qualifying the statements: saying that they apply only to "significant" violations of my rights, or violations that "really injure" me, or that by breathing and turning on lights and doing other things that impose tiny costs on others I am implicitly giving them permission to do the same to me. But once one starts playing this game one can no longer use rights arguments to draw clear conclusions about what should or should not happen. People who believe in taxes can argue just as plausibly that taxes do not really injure you, since the benefits they produce more than make up for the cost, or that everyone implicitly consents to taxes by using government services.

16) I totally agree with Friedman's major point here about the slippery slope that occurs when one tries to put limitations on an absolute "principle" because it is unworkable in practice. Particularly for real estate, conditions of usage are not related to any concept of rights. They are purely related to an entitlement to define and claim ownership of real estate and negotiate its boundary conditions, which entitlement is granted to one by the whole group of people with whom one has signed a common social contract, but more particularly by those who own abutting real estate. With respect to taxes of course, if there is no common land and no government, there can be no services which one uses except those to which one has voluntarily agreed under explicit contract when purchase or rental of the real estate or use of the property of others occurs.

The longer I have thought about these issues, the more convinced I have become that arguments about fundamental moral principles do not provide answers to enough important questions. In particular, they provide no answer, and no way of getting an answer, to a whole range of questions about where to draw lines. It seems obvious that we want property rules that prohibit trespass by thousand megawatt laser beams and machine-gun bullets but not by flashlights and individual carbon dioxide molecules. But how, in principle, do you decide where along that continuum the rights of the property owner stop? We want rules that prohibit me from demonstrating my marksmanship by shooting a rifle at flies hovering around your head but do not prohibit all airplane flights. We want rules that prohibit trespass by elephants but not by satellites orbiting three thousand miles over my roof.

17) With respect to Friedman's statement that: "arguments about fundamental moral principles do not provide answers to enough important questions", for most such principles which have been formulated, particularly those involving rights, I fully agree. However, that is not a sufficient reason to dispense completely with such arguments and abandon the search for one or more ethical principles which do adequately provide such answers. In my essay "Social Meta-Needs: A New Basis for Optimal Human Interaction"1 (SMN), I strongly argue that ethical egoism, redefined as a hypothetical imperative whose purpose is to achieve maximum lifetime happiness (MLH) for each individual, is precisely such a principle. Together with consistent, clear and realistic definitions of real estate and other aspects of human society, and a social contract to which each member of society explicitly agrees by his execution of it, I am convinced that the MLH principle can and does answer all important questions. In order to more clearly verify this and to hone it to perfection if it is found lacking, I request and challenge all readers to prove me wrong.

18) The Natural Social Contract provides clear guidelines for the solution of all Friedman's concerns, in the above paragraph, about where lines should be drawn. As I have discussed, all of Friedman's concerns related to real estate can be solved by requiring that covenants with neighbors be an integral part of the definition and registration of the real estate. Ethical egoism enters the picture as the underlying principle concerning what should happen when violations of covenants and other contract provisions between individuals occur. In this respect, any reasonable principle of justice implies that the ideal to be aimed for is a complete restoration of the lifetime happiness of the person who is violated to the state that it would have been in, when restoration takes place, if the violation had never occurred. Again I ask the reader to read SMN1 for the justification for this and the NSC3 for how it is implemented in practical form.

One tempting approach to such issues is to try to go back to the origin of property in land. If we knew how I acquired ownership of land, we might also know what that ownership consists of. Unfortunately, we do not know how I acquired ownership to land. John Locke, several centuries ago, suggested that we acquire land by mixing our labor with it, but he did not explain how, when I clear a piece of forest, I acquire not only the increased value due to my efforts but complete ownership over the land. How, in particular, do I acquire the right to forbid you from walking across the land--something you could have done even if I had never cleared it? Later libertarian theorists have suggested other grounds for establishing ownership in land, such as claiming it or marking its boundaries. But no one, so far as I know, has presented any convincing reason why, if land starts out belonging equally to everyone, I somehow lose my right to walk on it as a result of your loudly announcing that it is yours.

19) Friedman starts off here with the right approach (define what "ownership consists of"), but then seems to unnecessarily throw it away by concentrating purely on the historical origin of first ownership which, of course cannot be known. However, I do not see why it is totally necessary to understand how a given piece of land was originally acquired. Instead, I think it is mainly necessary to precisely define what real estate is, and what the ownership of it entails. Once this is done, real estate ownership becomes an entitlement which all members of a society recognize because it is in their long-range best interest to do so when it is correctly defined, registered and maintained. In fact, they have joined this society by signing a social contract precisely because they want to live under such a clear and well defined system. Surveying, defining and publishing the boundaries of real estate is certainly one of the necessary claiming, definition and registration steps required by the NSC.3 If real estate has been previously unowned but in use by several humans, then it is effectively co-claimed (although not officially "owned" because not registered) by all those users and there will have to be negotiation between them, and agreement of all, for its ownership to become fully established and entitled. In my system anyone would not be wise to be an owner of real estate which abuts any real estate which is in such an irresponsible, disorganized and unmaintained state (ie. which is not fully entitled). Because of such incentives and the minimal cost of doing so, all real estate would quickly become fully registered and entitled by one or more owners. Thus, no one would lose any ability or freedom that he previously had to use a piece of unowned real estate without being compensated for that loss by the new fully entitled owner.

20) The flaw in Friedman's last point lies in the premise: "if land starts out belonging equally to everyone". If real estate ownership is correctly defined, then without such arrangements of ownership being completed, it does not "belong" to anyone! Once your real estate is correctly defined and owned by you, it is your entitlement over it given to you by the rest of society which allows you to have the entitlement to forbid trespass on it. The other members of society give you such an entitlement because they recognize that this increases the stability of society, enables you to be more productive and thus, augments the lifetime happiness of each of them.

It is easy enough to show reasons why the conversion of common property into private property is a good thing--why it makes us better off--but it is very much harder to derive property in land from some a priori theory of natural rights. That is why, at the beginning of this book, I conceded that the basis of property in unproduced resources such as land is shaky, and argued that it does not matter very much, since only a small fraction of the income of a modern society is derived from such resources.

21) The reason why it is difficult (actually impossible) "to derive property in land from some a priori theory of natural rights" is precisely because no such "rights" actually exist in reality and there is no consistent and complete theory based on the abstracted concepts of natural rights. Friedman has given many arguments here which show this inconsistency and I give more in SMN.1 The only justification for private property, including real estate, is because its correct definition and use allows humans to maximize their lifetime happiness. This justification makes no distinction between kinds of property.

22) Friedman's use of the term "unproduced resources" such as land has no logical meaning both because there is no clear delineation of just which existents are and are not produced, and because everything which is produced depends on one or more unowned (and therefore presumably "unproduced") factors. For example, all crops grow from unowned water, carbon dioxide and nitrogen (some of them) in the air. A more extreme example is that everything which is produced on Earth relies on the fact that gravity exists and the sun produces energy. Since neither of those are owned by anyone, then everyone's use of them for production or just to stay alive would be a use of "unproduced resources". These example are given simply to show the illogic in the entire idea of "unproduced resources". The claiming, defining, covenanting, registration, and maintenance of real estate is certainly a productive activity, possibly much more so than the finding of a nugget of gold or the gaining of a windfall on the stock market. In a real and highly important sense, real estate is created de nuovo by the action of the first person who completes the process of obtaining proper title to it.

The problems I have discussed so far are all associated with the definition of property rights to land. A host of similar problems arise in specifying the rules of a legal system designed to enforce libertarian rights in a libertarian way. A criminal trial rarely if ever produces a certainty of guilt. If you jail (or fine) someone after concluding that there is a ninety-eight percent chance that he has committed a crime, there remains a two percent chance that you are violating the rights of someone who is innocent. Does that mean that you can never punish anyone unless you are a hundred percent certain he is guilty? If not, how in principle do libertarian moral principles tell you what degree of proof should be necessary for conviction and punishment?

23) Friedman's objection is bound to be correct simply because there are no clear definitions of the meanings of "libertarian rights" and "a libertarian way". However, if almost all social rules were for tort (restitution) purposes, any problems due to the lack of certainty of guilt and a subsequent change of any verdict would be quite different than in current US society. For one thing, if a new trial reversed a previous finding, any damage done to the person who was originally judged the violator (having now become a victim) would then need to be restituted by the original victim (having now become the violator). This method removes the need to make any estimation of the degree of proof, except by the plaintiff himself because he is the one who will gain the benefit of the restitution, and will be responsible to fully restitute his violator (having then become his victim) if that person is later found to not to be the effective cause of the harm. These questions are thus fully solved in the NSC3 where the basic relationship is between individuals (there are no crimes against society except breach of the NSC itself) and the basic ethic of justice is full restitution of the culpably harmed party by the party who was the effective cause of the harm. This requires a very clear and unique definition of what constitutes culpable harm or, more generally, violation, and what constitutes being the "effective cause" of such violation. The NSC contains just such definitions, and under it such moral dilemmas (such as degree of proof requirements) simply disappear because they are transparently resolved by the incentive/disincentive mechanisms of the charge/trial/restitution exchanges.

Once someone is convicted, the next question is what you can legitimately do to him. Suppose I have stolen a hundred dollars from you. If all you are allowed to do is take your money back, then theft is an attractive profession. Sometimes I am caught and give the money back, sometimes I am not caught and keep it. Heads I win, tails I break even.

In order to prevent theft, you must be able to take back more than was stolen. But how much more? When I raised that question once in a talk to a libertarian audience, I was told that it had already been answered by a prominent libertarian--you are entitled to take back exactly twice what is stolen. That was many years ago, but nobody yet has given me a reason why it should be twice. Two is a nice number, but so is three, and there may be much to be said for four, or ten, or a hundred. The problem is not to invent answers but to find some way of deriving them.

I could continue with a wide range of other problems for which the natural rights approach to libertarianism offers, so far as I can tell, no solution. I would prefer instead to suggest a different criticism of that approach. Even if we ignore situations that involve vanishingly small rights violations, the usual statements of libertarian principle imply conclusions that almost nobody, libertarian or otherwise, believes in.

24) One is the only just number! If the ethic of justice is the complete restoration of the victim to the state of lifetime happiness which he would have been in at the time of restitution completion if the violation had never occurred, then I see no reason for any additional payment. Any less would be an injustice to the victim and insufficient responsibility assessed against the violator. Any more would be an unearned windfall for the victim, and an injustice to the violator. Any number greater than one would distort the very fabric of risk/gain decision making in reality.1 In assessing the above, it is imperative to separate the moral nature of causing harm from its tort aspect. The principle of justice which I have enunciated here applies only to the tort aspect which is caused by harm of any kind, whether accidental, due to negligence or intentional. In fact, from a tort point of view, which of these occurs is quite irrelevant. In the NSC,3 the moral aspect of a harmful act is only penalized in one way - it is a breach of the NSC itself. Any such intentional violation is grounds for termination of the advantages of the NSC with respect to any the violator. There are many advantages to the NSC structure and function which will provide strong incentives to any signer not to be excluded from the society it defines. In fact, all such breaches of the NSC (and all other trial results) will be published so that all executors can know of them and executors will generally decline to exchange with anyone who is in breach of the NSC. Of course, this will only become adequately strong enough when sufficient numbers of people have signed the NSC; it will then be highly disadvantageous to be required to operate outside of it.

Consider the following example. A madman is about to open fire on a crowd; if he does so numerous innocent people will die. The only way to prevent him is to shoot him with a rifle that is within reach of several members of the crowd. The rifle is on the private property of its legitimate owner. He is a well known misanthrope who has publicly stated on numerous occasions that he is opposed to letting anyone use his rifle without his permission, even if it would save hundreds of lives.

25) There are several major flaws in the statement of this example. The first and most important of those are the assumptions about the "madman": that the person under question really is a madman (by what definition and by what evidence), that he has a loaded gun, that he will shoot it (instead of merely threatening), and that he will actually harm anyone. The second relates to the misanthrope. If he has been so vocal as Friedman states, then he has also likely said what would be the penalty for use of his rifle without his permission. That would be particularly true under the NSC3 where all violations are first prosecuted to get restitution for damage done, and only secondarily for intent of violation. Finally, Friedman ignores the reasonable methods of prevention of harm that members of the crowd could take. Among these are: taking cover, escaping the scene and simply falling to the ground.

Two questions now arise. The first is whether members of the crowd have a right to take the rifle and use it to shoot the madman. The answer of libertarian rights theory, as I understand it, is no. The owner of the rifle is not responsible for the existence of the madman, and the fact that his rifle is, temporarily, of enormous value to other people does not give them a right to take it.

26) This example is simply one more illustration of the bankruptcy (because of not being consistent with respect to reality) of any theory of "rights". However, the correct solution is very clear when it is based on the theory of Social Meta-Needs1. Whoever wishes to take the risks involved with violating the property of the "misanthrope" and needing to pay him restitution afterwards, and with the possible damage to the madman who might not really have been going to shoot anyone, will take the rifle and stop him. However, that person will be responsible for restitution of any damage that he causes. Hopefully, others who he has saved will join in to help him pay any such restitution, to the extent that they think that he judged well and saved them from harm. This is a full solution according to the methods of the NSC3 and I see no other to be possible without a gross increase of the minimum possible rules of society and thereby, a gross decrease in the maximum possible happiness of each of its individuals.

The second question is whether it is desirable that someone take the rifle and use it to shoot the madman--whether, to put it more personally, I wish that someone do so, or whether I would rather see the members of the crowd stand there and be shot down. The answer to this question seems equally unambiguous. If someone takes the rifle, there is a relatively minor violation of the legitimate rights of its owner; if no one does, there is a major violation of the legitimate rights (not to be killed) of a large number of victims--plus a substantial cost in human life and human pain. If asked which of these outcomes I would prefer to see, the answer is obviously the first.

27) It is important to point out the fundamental flaw in the statement: "If someone takes the rifle, there is a relatively minor violation of the legitimate rights of its owner". Since only the owner of the rifle can judge the damage done to him by any violation of his property, there is no objective manner in which to determine such violation in advance except by asking him to sign a contract about it. The idea that the harm from violations can be set by "society", or anyone in it except the victim(s), to objectively apply equally to all its members, is a major fault of all current and previous justice systems, which is logically equivalent to the error of socialist egalitarianism.

This result is not, in any strict sense, paradoxical. An outcome may be desirable even though there is no morally legitimate way of achieving it. Indeed, this possibility is implied by the idea (due to Nozick) of viewing libertarian rights as "side constraints" within which we seek to achieve some objective; the constraints would be irrelevant unless there were some circumstances in which we could better achieve the objective by ignoring them.

28) I reject any possibility that "An outcome may be desirable even though there is no morally legitimate way of achieving it." The reason is simply that whenever this appears to be true, the only answer can be that the definition of a "morally legitimate way" must be faulty because any correct definition of correct action (moral) must give desirable outcomes in reality. Nozick's view is heading in the right direction; however, he does not follow it to its logical conclusion. If all rights must have such "side constraints" - exceptions under which it is desirable to seek some other objective, then would it not be better still to get rid of the "rights" and concentrate on defining just what those objectives are under all cases - not merely when they are acceptable as "side constraints"? If one examines human nature and looks deeply for this global and fundamental objective, it will be seen to exist in what I have called the Maximum Lifetime Happiness purpose1 of human existence.

While not in any strict sense paradoxical, the result is, at least to me, an uncomfortable one. It puts me in the position of saying that I very much hope someone grabs the gun, but that I disapprove of whoever does so.

29) This conflict between Friedman's desire that someone grab the gun, and his sense of disapproval of such an action, should show him that there is a major flaw in his and everyone else's thinking about "rights". And it should also demonstrate that it is way past time to eliminate these inconsistent, incomplete and after several centuries somewhat "archaic" notions in favor of something more fundamentally basic to human nature - which, in fact, is nothing more than the reason why everyone thought rights were beneficial in the first place - that they enhance the abilities of humans to jointly maximize their lifetime happiness.

One solution to this problem is to reject the idea that natural rights are absolute; potential victims have the right to commit a minor rights violation, compensating the owner of the gun afterwards to the best of their ability, in order to prevent a major one. Another is to claim that natural rights are convenient rules of thumb which correctly describe how one should act under most circumstances, but that in sufficiently unusual situations one must abandon the general rules and make decisions in terms of the ultimate objectives which the rules were intended to achieve. A third response is to assert that the situation I have described cannot occur, that there is some natural law guaranteeing that rights violations will always have bad consequences and that committing one rights violation can never decrease the total of rights violations.

30) Friedman's second solution above is essentially my conclusion. I contend that natural rights theory is related to Social Meta-Needs theory as Newtonian physics is to relativistic quantum theory. In certain extremes of human interactions, natural rights considerations simply give the wrong answers for optimal human behavior, whereas Social Meta-Needs theory gives the right answers. Only in a very limited set of circumstances do the answers from Social Meta-Needs theory also coincide with those of natural rights theory so that the human actions determined by each are the same and are correct. The only part of Friedman's description of the second solution which is incorrect is his statement "one must abandon the general rules and make decisions [in each special case]". The correct solution is to find and adopt a new set of general rules which also work "in sufficiently unusual situations". This what I have tried to accomplish by means of Social Meta-Needs theory1 and its implementation in the Natural Social Contract3.

All of these positions lead to the same conclusion. Under some circumstances rights violations must be evaluated on their merits, rather than rejected a priori on conventional libertarian natural rights grounds. Those who believe that rights violations are always undesirable will be sure that the result of the evaluation will be to reject the violation, but that does not mean that they can reject arguments to the contrary without first answering them. Any such argument claims to provide a counterexample to their general theorem, and if one such counterexample is true the general theorem must be false.

I have made my point so far in terms of an issue created for the purpose; whether or not to steal rifles in order to shoot madmen is not a burning issue in libertarian (or other) circles. I will now carry the argument a step further by defending one of the particular heresies which, it is widely believed, no libertarian can support--that under some conceivable circumstances a draft would be desirable.

31) Again Friedman misses the obvious conclusion; that "conventional libertarian natural rights" are incomplete and inconsistent and should be rejected. Instead, all actions "must be evaluated on their merits" with the merits and the method of evaluation based on rules derived from the same basis from which those rights were derived in the first place, but, as opposed to natural rights, are a complete and consistent basis for the evaluation of all human actions. Only then will there be no conflicts of when to do which (stick with the rules or make exceptions to them). Only then will there be a consistent basis for evaluating the justice of all human interactions. Only then will it be possible to produce a general theory which is universally valid because it has no counterexamples.

Suppose we are threatened with military conquest by a particularly vicious totalitarian government; if the conquest is successful we shall all lose most of our freedom and many of us will lose our lives. It is claimed that only a draft can protect us. Two replies are possible. The first is that since coercion is always wrong we should reject the draft whatever the consequences. I have tried to show that that answer is not satisfactory--at the most it should lead us to refuse to enforce a draft ourselves while hoping that someone with fewer principles imposes one for us. Temporary slavery is, after all, better than permanent slavery.

The other possible reply is to deny that the draft is necessary. This can be done in many ways. The economist is inclined to argue that collecting taxes in cash and using them to hire soldiers is always more efficient than collecting taxes in labor; the moralist may claim that a society whose members will not voluntarily defend it is not worth defending. I have myself used the first argument many times; I believe that in the circumstances presently facing the U.S. it is correct. But the question I am currently concerned with is not whether under present circumstances, or even under likely circumstances, a draft is desirable. The question is whether under any conceivable circumstances it could be.

32) The error in Friedman's reasoning here illustrates collectivist thinking, and this fact can best be illuminated by asking the question: "Who decides?" This situation is actually very different from the last example where one person had to decide whether to take action possibly violating at most two fully known others. Here instead the action (a draft law) would be a collective violation of all the people upon some of themselves. Thus, it is faulty logic for Friedman to think that the same reasoning that he used in the previous case applies to this situation. It is far better to allow such a situation to be solved by the market mechanisms of individual evaluation about whether or not the threat is severe enough to need a much higher degree of military protection than currently exists. If there is such a real threat, and that fact is fully communicated to the populace, then sufficient members of the populace will respond by voluntarily joining an armed protection force. If they do not, then why should some elite, which thinks they know better than the rest, be able to do any more than continue to try to convince the others, and in the end, merely contribute more of their own money and their persons to do what they think is necessary? Whoever does contribute, particularly if they demonstrate in the end that the contribution was necessary, can then negatively preference against those who do not contribute (ie. socially and economically decline to exchange with them), or simply ask them to contribute to the lost time, monetary and personal damages which befell those who did contribute now that the non-contributors see that it really was necessary.

The answer is yes. Imagine a situation in which the chance of a soldier being killed is so high that a rational individual who is concerned chiefly with his own welfare will refuse to volunteer even at a very high wage.

33) This statement is inconsistent on the face of it. Either fighting is necessary to save one's self, family, friends and neighbors from getting killed or enslaved, or it is not. If it is not then the war should not be fought. If it is then the chance of getting killed in the fighting is inconsequential because if one does not fight then one will suffer just as bad a fate. If the same fate of one's loved ones is also taken into account, then the rational evaluation will certainly be in favor of fighting for those who are able to do that best.

Imagine further that the percentage of the population required to defeat the enemy is so large that there are simply not enough patriotic, or altruistic, or adventure loving, or unreasonably optimistic recruits available; in order to win the war the army must also include selfish individuals with a realistic view of the costs and benefits to themselves of joining the army. Recruiters and preachers will of course point out to such individuals that "if everyone refuses to fight we will be conquered and you will be worse off than if everyone volunteers to fight." The individual will reply, correctly, that what he does does not determine what everyone else does. If everyone else volunteers, he can stay safely at home; if nobody else volunteers and he does, he will almost certainly be killed and if not killed will be enslaved.

34) I as have argued in the theory of Social Meta-Needs1, it is faulty for an individual to argue "that what he does does not determine what everyone else does." The interrelational feedback effects of any social order shows that this is not true in general. This happens in a similar manner to which the effects of market decisions by individuals will affect the supply and pricing of products and services and thus, the decisions of all other individuals.

35) The solution to the problem described here is a social order with very public, strong social and economic preferencing methods built into it. If not joining up and fighting (when it is clear that it is necessary to save oneself and one's associates from becoming slaves) is sufficiently stigmatizing so that all those who can, do join up (or do not join only because of physical inabilities, but still contribute in other ways), know about the failure to join (and/or to contribute) of others, and will socially and economically preference such non-joiners (non-contributors) into a profoundly poor state of existence, then he will join up and/or contribute, after fully evaluating all the costs and benefits of doing so. Only when all property is in private hands will such preferencing methods be able to be sufficiently strong to work effectively in the most extreme cases.

Under such circumstances, an army could be recruited without a draft by paying very high salaries and financing them with taxes so high that anyone who does not volunteer starves to death. The coercion of a tax is then indistinguishable from the coercion of a draft. While a libertarian may still argue that to impose either a draft or a tax is immoral and that he himself would refuse to do so, I find it hard to see how he can deny that, under the circumstances I have hypothesized, he would rather see himself and everyone else temporarily enslaved by his own government than permanently enslaved by someone else's.

36) As I have pointed out, a Social Meta-Needs1 approach coupled with fully privatized property and a highly publicized social and economic preferencing (discrimination) system will solve this problem very nicely. The same approach will apply to both the man-power and monetary contributions to defense, so that neither draft nor taxes will be necessary. The key to such a system is the lack of any "right" to privacy and the full publication on a Universal Communications Network3 (UCN) accessible by all members of society, of all positive and negative interpersonal actions of all members of that society in an easily searchable form. This is the system which is implemented in NSC, which would not have been possible before the last 10 years.

Thus, Friedman's last proposed choice "rather see himself and everyone else temporarily enslaved by his own government than permanently enslaved by someone else's" is a false alternative in a optimally organized society.

The point of this argument is not that we should have a draft. As it happens, I not only believe that under present circumstances a draft is a bad thing, I also believe that if the government has the power to impose a draft it is very much more likely that it will use it when it should not than that the rather unlikely circumstances I have described will occur. That is, however, a practical argument, and one that might depend on the particular circumstances of a particular time and place; it is not an argument of principle that would apply everywhere and everywhen.

37) On the other hand, the solution that I have given, which derives from the NSC3 implementation of Social Meta-Needs theory1, does apply everywhere and everywhen!

Perhaps what these examples show is not that we cannot accept a simple statement of libertarian principle but only that I picked the wrong one. Perhaps we should replace a statement about what one should do ("never initiate coercion") with a statement about what objective one should seek ("do whatever minimizes the total amount of coercion"). Both seizing the rifle and imposing a draft are then, in the particular circumstances I have described, not only consistent with libertarian principle but required by it.

38) This (minimizing the total amount of coercion) is getting closer to the right approach, however, Friedman is forgetting that the purpose of human life is not to minimize coercion, but to maximize lifetime happiness. Therefore, I ask the rhetorical question: How about not allowing any intentional coercion at all, but if any violation does occur, requiring full restitution of all loss to those who are violated? See my SMN1 essay for details of meaning and justification, and the NSC3 for details of implementation.

While I cannot speak for other libertarians, I find that this version of libertarianism does not always fit my moral intuition. Suppose the only way I can stop someone from stealing two hundred dollars from me is by stealing your hundred dollar rifle (which you are unwilling to lend or sell me) and using it to defend myself. The result is to reduce the total amount of coercion, at least if we measure amount by value of what is stolen. Yet it seems, at least to me, that stealing the rifle is still wrong.

39) Here, Friedman's moral intuition is quite correct, but his argument is essentially self-contradictory and his unease about it is misplaced. The reason that it is wrong to steal the rifle is because it is not up to him to evaluate its worth. That evaluation is up to its owner. If the rifle actually was only worth $100 to the owner, then the owner would sell it to him for that price. Friedman would buy it, use it and the matter would be finished. However, the fact that the rifle owner is "unwilling to lend or sell" it means that the restitution that he would have to pay the owner for using it would certainly be worth more than the $200 that he is about to lose. Thus, when viewed correctly it can be seen that there is no conflict at all regarding which action to take. In fact, the only time when such a violational action would be correct would be if a person's life were clearly in jeopardy. Only then would it be reasonable to make the violation and be responsible for any restitution which might be asked by the person who had been violated. This is because without life there can be no possibility of happiness. Only if the likely restitution or other consequences would be worse than the loss of one's life, would not doing what is necessary to save it be a rational action.

A second problem with this approach is that it is of no help when we must choose between a small cost in coercion and an enormous cost in something else. Suppose you happen to know that everyone in the world is going to die tomorrow (by some natural catastrophe, say the earth colliding with a large asteroid), unless you prevent it. Further suppose that the only way to prevent it involves stealing a piece of equipment worth a hundred dollars from someone who, in your opinion, rightfully owns it. Your choice is simple: violate libertarian principles by stealing something or let everyone die.

What do you do? You cannot justify stealing as a way of minimizing total coercion. Being killed by an asteroid is not coercion, since it is not done by a person. After the asteroid strikes there will be no more coercion ever again, since there will be no one left to either coerce or be coerced.

Speaking for myself, the answer is that I steal. When I put such questions to other libertarians, one common response is a frantic attempt to reinterpret the problem out of existence. One example might be the reply that, since the person you are stealing from will himself be killed if you do not take the device, he would be in favor of your taking it, so you are not really stealing--you are using the device in the way he would want you to if he knew what you know. Another response might be that you should not steal the equipment because your belief that doing so will save the world may be wrong.

All such evasions are futile. I can always alter the assumptions to force the issue back to its original form. Perhaps the owner of the device agrees that using it is necessary if the world is to be saved, but he is old, tired of living, and not very fond of his fellow humans. Perhaps the situation is so clear that everyone agrees that without your act of theft we shall all die.

40) I fully agree that Friedman's example is realistic enough that it can be altered to counter all attempts to avoid its essential conflict in terms of rights theory. This example is but one more very strong demonstration of the fundamental inconsistency of natural rights theory. However, once again Social Meta-Needs theory1 and the MLH purpose of human existence as implemented by the social and economic preferencing and restitution principles embedded in the NSC3, solves this problem in a fully satisfactory manner. While it is true that in the last part of his example - where Friedman describes the owner of the world-saving device as being so "old, tired of living, and not very fond of his fellow humans" that he does not want his device to be used - that such a person will possibly have his harm unrestitutable, this is still not an exception to the system that I am proposing, and have described and defined in detail in the references given. That is because it is only possible for that system to mutually maximize the happiness of all those who rationally follow the MLH purpose. In effect, this means that the old man should have either committed suicide or contracted with someone to euthanize him. One way to see that he is effectively outside of society is to determine if any substantial number of other persons would wish to support him in prosecuting by trial or to negatively preference against the person who stole the machine and saved the world.

Our response to such questions demonstrates that we do not really believe in simple single values. Most libertarians, myself among them, believe that a libertarian society is both just and attractive. It is easy enough to claim that we are in favor of following libertarian principle whatever the consequences--given that we believe the consequences would be the most attractive society the world has ever known. But the claim that we put individual rights above everything else is, for most of us, false. Although we give some value, perhaps very great value, to individual rights, we do not give them an infinite value. We can pretend the contrary only by resolutely refusing to consider situations in which we might have to choose between individual rights and other things that are also of great value.

My purpose is not to argue that we should stop being libertarians. My purpose is to argue that libertarianism is not a collection of straightforward and unambiguous arguments establishing with certainty a set of unquestionable propositions. It is rather the attempt to apply certain economic and ethical insights to a very complicated world. The more carefully one does so, the more complications one is likely to discover and the more qualifications one must put on one's results.

41) Friedman's examples and arguments have greatly helped me to increase my understanding of my own different approach to their solution, to strengthen my arguments for that approach, and to hone the NSC3, which is my practical implementation of that approach. In the end as Friedman has concluded, any manner of applying natural rights theory to the complex world of human interactions has so many exceptions and qualifications as to be completely untenable. It appears from his later writings that this earlier thinking caused Friedman to essentially abandon natural rights theory in favor of a purely utilitarian praxeological approach to law. It is my great hope that by reading my critiques of his thinking and writing he will be able to restore within his mind the fervent passion to find ethical solutions which this chapter of Machinery of Freedom shows that he had in his youth. And by doing so that he will see the answers which he almost had, but just missed, and which I have now shown can be embedded in a complete and consistent system which solves all the problems that he has posed.

Footnotes and References:

1. Such a theory is explicated in the essay: "Social Meta-Needs: A New Basis for Optimal Interaction".

2. The Machinery of Freedom: Guide to a Radical Capitalism: Chapter 41.

3. For complete definitions and details see: the "Natural Social Contract".

4. For more detail concerning why such undefined plural usages have negative effects on logical thought see: "Essential Collectivism in Language: Its Effects on Rational Thinking".

5. See "3. The Ethics of Emergencies" in The Virtue of Selfishness or "Notes on The Virtue of Selfishness".

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