Bryan Caplan  

EconLog Book Club: For a New Liberty, Chapter 6

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Summary
In this chapter on "Personal Liberty," Rothbard puts run-of-the-mill "civil libertarians" to shame.  He's more radical than most of the left on traditional civil liberties like freedom of speech, drugs, and wiretapping.  He stands up for the rights to libel and slander; he defends full-blown drug legalization, not a switch from "punishment" to "treatment"; and he argues that wiretapping the innocent is criminal, whether or not you've got a warrant. 

At the same time, Rothbard insists that many "right-wing" causes are neglected civil liberties issues.  How can there be freedom of speech when the government licenses the airwaves?  If people have a right to advocate the most heinous positions, why can't tobacco companies advertise on television?  And if it's wrong to persecute a whole category of people because it has an above-average fraction of bad apples ("profiling" in current parlance), what's the deal with gun control?  Yes, criminals often use guns; but how does that justify the persecution of the vast majority of gun owners who aren't criminals?

Critical Comments
1. I agree with Rothbard's critique of libel and slander law.  The Western world condemns Singapore for using defamation law to silence dissent; but once you buy the principle of banning false, damaging statements, how is Singapore in the wrong? 

Furthermore, if deception should be illegal, why not self-deception?  In other words, if it is legal for me to irrationally decide that you're a cheat, why isn't it legal for me to share my irrational accusations with others?  In both cases, you're losing customers because people have false beliefs about your character. 

Here's my favorite reductio on libel and slander.  The last time I checked, the typical Randian accepted the law of defamation.  He also accepted aesthetic objectivism: "Atlas Shrugged is a great book," is literally true.  Doesn't it follow, then, that it should be illegal for a reviewer to deny that AS is a great book?  He's making a false, damaging statement, right?

Let me add that in the Google age, Rothbard's case against libel and slander is stronger than ever.  False claims abound on the Internet.  If believed, many would be very damaging.  But most Internet users have the common sense to ignore unsubstantiated accusations, so in practice they do little harm. 

2. If you really think about it, here's the most critical paragraph in the entire book:
[I]f A is a boss in a criminal enterprise, and, as part of the crime, orders his henchmen: "You and him go and rob such and such a bank," then of course A, according to the law of accessories, becomes a participant or even leader in the criminal enterprise itself.
Why is it so important?   Recall that Rothbard's whole theory is that the State is a criminal gang.  So if giving orders to commit serious crimes were not itself a serious crime, he'd have to exonerate the vast majority of political leaders who never personally commit invasive acts!   In other words, the law of accessories is not a footnote to libertarian theory; it is the entire basis on which government leaders are considered mass murderers - as opposed to bystanders exercising their freedom of speech.

Once you accept the law of accessories though (and it's absurd not to), Rothbard's objections to charges of "incitement" and "conspiracy" make little sense.  Here's what he says:
In our view, "incitement" can only be considered a crime if we deny every man's freedom of will and of choice, and assume that if A tells B and C: "You and him go ahead and riot!" that somehow B and C are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for A to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty.
If we bought this argument, then Hitler would not be the architect of the Holocaust, but merely its cheerleader.  After all, what did he do other than tell some people, "You and him go ahead and commit mass murder"?  What's the difference between "telling" and "ordering" anyway?  Fortunately, it's easy to make this contradiction go away: Rothbard should just admit that whoever "incites a riot" is an accessory to the riot, just as the Godfather who orders a murder is an accessory to murder.

3. My favorite passage from this chapter:
This is not to argue, of course, for prohibition of alcohol; once again, to outlaw something which might lead to crime is an illegitimate and invasive assault on the rights of person and property, an assault which, again, would far more justify the immediate incarceration of all teenage males. Only the overt commission of a crime should be illegal, and the way to combat crimes committed under the influence of alcohol is to be more diligent about the crimes themselves, not to outlaw the alcohol.
This sounds like a left-wing argument; but as Rothbard notes, it also undermines left-wing crusades against guns, porn, etc.  If you have troubling grasping the appeal of libertarianism, this paragraph should be a big help.  Libertarians are unusually likely to take arguments literally, and see what they actually imply, instead of just rationalizing the prejudices of their ideological sub-culture.

P.S. For a more thoughtful philosophical critique of gun control, see Michael Huemer's "Is There a Right to Own a Gun?"


Comments and Sharing


CATEGORIES: Book Club
Twitter: Bryan Caplan @bryan_caplan



COMMENTS (19 to date)
Zac writes:
What's the difference between "telling" and "ordering" anyway?
An "order" has an implied threat of retribution if not followed. An order is different from incitement because, to channel Rothbard (if I read him correctly), an order takes away your freedom of choice to some degree. If you are "ordered" to steal a loaf of bread, under penalty of torture and death for treason, the person giving you the order is quite more culpable than you are for the theft (what were you supposed to do -- die?) but if your friend asks you to steal a loaf of bread, and you have the full ability to tell him "no," then you are certainly more at fault than him if you go ahead and steal it.

This is why Hitler is more evil than Martin Luther and rightly gets the blame for the Holocaust. Yes, Von den Juden und ihren Lügen is an abhorrent work by an abhorrent man, but ordering the systematic execution of the Jews is worse than suggesting that it would be a good idea.

David R. Henderson writes:

My favorite paragraph in Bryan's critique is his last one:

This sounds like a left-wing argument; but as Rothbard notes, it also undermines left-wing crusades against guns, porn, etc. If you have troubling grasping the appeal of libertarianism, this paragraph should be a big help. Libertarians are unusually likely to take arguments literally, and see what they actually imply, instead of just rationalizing the prejudices of their ideological sub-culture.

That's what I've always loved about libertarians and libertarianism. And it drives me crazy when people who don't know me think they know me and think all I'm doing is rationalizing my own preferences. I believed in the right to get rich even when I hated rich people. I believed in the right to own guns even when the thought frightened me. I believe in the right to take heroin and the right to marry your gay partner even though I've never taken heroin and I'm not gay.

Kit writes:

Is "incitement" a crime in itself? Would Hitler still be a criminal even if his orders were ignored?

The Cupboard Is Bare writes:

Regarding slander and libel. It's one thing to say or write untruthful, unsubstantiated or damaging things about another person, but the individual making the remarks should own up to the fact that they are responsible for them. In this way, people can evaluate what was presented as the truth based upon the reputation of the individual who made the damaging remarks.

"Let me add that in the Google age, Rothbard's case against libel and slander is stronger than ever. False claims abound on the Internet. If believed, many would be very damaging. But most Internet users have the common sense to ignore unsubstantiated accusations, so in practice they do little harm."

What if the individual isn't directly making false claims against someone; but is, instead, through the use of the search engines, links and websites, anonymously making it appear as if the person is engaging in unethical, illegal and/or immoral activities?

Would you still call that freedom of speech?

Swimmy writes:

Zac: This is an excellent point, but the obvious hypothetical to then pose is whether Hitler's acts should still be deemed illegal even if all of his subordinates could have quit without fear of further repercussions. My answer is yes.

(One could respond that being threatened with one's job is force, but this would get a libertarian in deep trouble.)

Arare Litus writes:

Impressions

This chapter on personal liberty is reactionary against a host of government restriction. Each issue is individually attacked, with selective logic and overly narrow argument. I would have liked to see a more systematic and broad discussion, if only to force Rothbard to be more honest in his rhetoric – in particular Rothbard is loose in his efficiency arguments, using efficiency or lack there of to support his view at times and ignoring it at others. I was somewhat surprised that Rothbard does not think libel/slander should be legally restricted. Even more so his dismissiveness of abortion arguments, which seem to be an ideal testing case of theory and ideas – he could have discussed this more sharply, if only to clarify issues:

“The common retort that the mother either originally wanted or at least
was responsible for placing the fetus within her body is, again, beside the
point. Even in the stronger case where the mother originally wanted the
child, the mother, as the property owner in her own body, has the right to
change her mind and to eject it.”

Interesting, leave aside the manner of “ejection”, by this same logic a parent can disown and turn a child out into the street at any point. Bored by your 3 year old? Off to the gutter! That child was parasitic on the family anyways.

Rothbard seems to have a disregard for contracts, which seems very strange since this seems to be a key base of our wealth and even libertarian theory. I would expect a more clear consideration of contracts, borderline cases, etc. Could not the abortion/child issue be viewed as an implicit contract? And earlier Rothbard seems to suggest one can break military contracts at will. Is not the main benefit of contracts to establish clear outcomes and behaviour, particularly under conditions where one party has an incentive to reprioritize? Sure, there may be a one off gain in redefining terms of contracts – but is there not a long term cost that is much higher?

Most interesting to me is that Rothbard appears to believe in courts, which to me is some sort of state/collective function – is this a stop gap measure towards a libertarian ideal world, or a step back from his strongly defined government=evil? Semantics? I’m interested in reading the chapters on law, how is law not government?

Rothbard seems to attack and consider things at the surface:
“But for some odd reason, liberals have systematically tried to deprive innocent
persons of the means for defending themselves against aggression.”

Yes, quite odd. Looking at the bundle of beliefs liberals have can tell you a lot, much more than their justification (or lack thereof) of each belief. One of liberalism’s main underlying tenants seems to be that humans are intrinsically flawed, but that “education” will morally and intellectually purify you. In fact, if you switch out terms and ideas liberalism starts to look a lot like Christianity – where the state takes on the role of god, education the bible, politicians as spiritual saviors, intellectuals as prophets, etc. Perhaps this analogue is too superficial, but it struck me after reading the above quote and thinking about how liberals have contradictory views on democracy and elitism.

This chapter really made me think about democracy, contracts, efficiency, specialization, government, etc. A lot of core ideas are the undercurrents that drive the specifics in this chapter.

Arare Litus writes:

David R. Henderson writes:

That's what I've always loved about libertarians and libertarianism. And it drives me crazy when people who don't know me think they know me and think all I'm doing is rationalizing my own preferences.

Earlier Bryan Caplan commented on "profiling", or setting policy based on subset arguments.

Perhaps libertarians profile? Total freedom is good for me because I come from the subset of people who excel (the most) under those conditions (either by luck of family, or luck of genes, character, etc.). Therefore it is good for everybody. Now I'll give my self a boast and feel good about also letting other people do whatever they want to.

Does this not (seem to) ignore the subset of people with bad luck? Is this not a core weakness of libertarianism - the perceived ignorance of the disadvantaged?

When does one know when you are merely rationalizing your own preferences, or if you hit on The Truth? It seems that we are constructed to rationalize our behaviour. Is it not rational for others to think you are therefore doing so? Is it not rational for you to suspect you are? Especially if a perceived weakness is not addressed?

Arare Litus writes:

On slander/libel:

Bryan Caplan says "I agree with Rothbard's critique of libel and slander law."

Is not fraud deception made for personal gain? Isn't slander/libel a subset of this? Reductio is useful, but failure in one limit doesn't therefore imply the other limit.

The internet has reduced the price of libel, but also the quality. "Anonymous" says Bryan does X horrible thing. weight=0. damage=0. The near zero quality of internet libel does not provide convincing support to strengthen Rothbard's case.

To me it seems that fraud is one of the few seriously moral wrongs, that should also be a serious legal wrong.

Jeremy, Alabama writes:

Slander/Libel:

Extreme slander = incitement, extreme incitement = conspiracy. If one is legal and the other not, then the legality of slander is a question of degree, so it is likely to go to court, whatever Rothbard thinks.

Re: drugs, alcohol:

The vehemence of Rothbard's drugs argument unfortunately makes me feel it is central to the philosophy. But I don't care what he thinks, I only care whether I can keep drugs away from my 3 year old long enough for her to become an adult and responsible for herself. Therefore his arguments dilute my support. In fact I agree with the Economist on this: they narrowly chose, from 2 bad options, that legalization and/or regulation destroys the trade by removing the profit, and therefore, potentially, the pushers.

b. writes:

I also find the abortion argument weak. If one is free to "eject" someone from one's property even after prior invitation/inducement, then would that mean tossing someone out of your car while traveling 70 mph is legal? Perhaps one could posit a legal rule imposing a duty to reasonably minimize harm for all ejected parties? Though that would complicate the issue of later-term abortions considerably.
I just don't see anyway around the view that libertarian philosophy doesn't provide a good standard for when legal personhood begins.

Arare Litus writes:
Could not the abortion/child issue be viewed as an implicit contract? And earlier Rothbard seems to suggest one can break military contracts at will.

The idea of implicit contracts (or that they should be treated as strongly as explicit contracts) is very thorny, as it lacks the basic core of consent that underlies libertarian relations. Who decides what the terms of the implicit contract is if the parties involved do not? Who has standing to prosecute a breach? You basically end up with a situation where some party claims to be acting on behalf of some other party against a third party. When you open that can of worms you get statists seeing implicit contracts everywhere they want to impose their views by force. In general, I don't see the idea of implicit contracts as a good extension of the concept of contracts.

As far as military contracts, I believe the view is that the penalties for breach should be monetary damages, as in most breaches, not imprisonment, as it is in the military situation. You generally aren't locked up for breaking contracts.

Most interesting to me is that Rothbard appears to believe in courts, which to me is some sort of state/collective function

I haven't yet read the section on courts yet either, but there is a literature on private provision of courts and legal services. David Friedman and Bruce Benson talk about this in their books, providing some interesting historical examples.

Jason writes:

Jeremy,

I might be misunderstanding the purpose of your statement regarding keeping drugs away from your child, my apologies if I am.

But riddle me this: How is keeping your child away from drugs different than keeping your child away from cigarettes and alcohol? Or promiscuous sex? Or petty theft? Or irresponsible gambling? Or any other of the number of issues and trouble children/tweens/teenagers/college kids can get into?

Also, should your child/tween/teenager/college kid get into drugs, do you not think his chances in life are better if he is involved in the current illegal and violent drug trade or some form of the legal sale of alcohol currently in place.

Hume writes:

One's desire to keep drugs away from his/her child(ren) does not legitimize the use of violence against others who desire to use such drugs.

Jeremy, Alabama writes:

Hi Jason,

I judge drug abuse to be a greater danger to my childen than the other ones you list, because they are more likely to be existential rather than merely uncomfortable. I could be wrong.


Hume,

You are totally correct.

And I happen to agree (with the Economist, that is), that recreational drugs should not be illegal. HOWEVER this is coincidental and I would be just as satisfied to disagree with you. You would still be correct.

This is an important difference between pure libertarianism and non-pure-libertarians (in this case, I am slightly conservative).

I discovered in the last 3 years that I don't rank untrammelled freedom above all things, I rank my children above all things. On 99% of issues, the result is the same, because my children will benefit from the freedom. But if a drug pusher, who exists because of a profit motive that exists because of drug laws, gets through my defences and ruins my children, that would be a very bad thing.

But, if drug laws helped instead of hurt, I would not care that making it illegal would be a violence on you (I agree it would be a violence). That makes me conservative on this issue, and I apologize for it.

Hugo Pottisch writes:

When it comes to the gun issue - I am actually with Mrs Rand on this one. In an interview she said:

Raymond Newman: You have stated that the government ought to be the exclusive agent for the use of force under objective rules of law and justice --

Ayn Rand: That's right.

Newman: -- and yet at the same time today we see an alarming rise in violent crimes in this country and more and more people applying for gun permits and wanting to protect themselves. Do you see this as a dangerous trend, number one; and number two, do you favor any form of gun control laws?

Rand: I have given it no thought at all and, off-hand, I would say, no, the government shouldn't control guns except in very marginal forms. I don't think it's very important because I don't think it is in physical terms that the decisions and the fate of this country will be determined. If this country falls apart altogether, if the government collapses bankrupt, your having a handgun in your pocket isn't going to save your life. What you would need is ideas and other people who share those ideas and fighting towards a proper civilized government, not handguns for personal protection.


Later, in 1973, she added:
It's a complex, technical issue in the philosophy of law. Handguns are instruments for killing people -- they are not carried for hunting animals -- and you have no right to kill people. You do have the right to self-defense, however. I don't know how the issue is to be resolved to protect you without giving you the privilege to kill people at whim.
Hugo Pottisch writes:

Quotes above via this interesting site.

Arare Litus writes:

b.

The idea of implicit contracts (or that they should be treated as strongly as explicit contracts) is very thorny [...] some party claims to be acting on behalf of some other party against a third party [...] I don't see the idea of implicit contracts as a good extension of the concept of contracts.

Very true, the slope is slippery there - however, one should be held accountable to the care of ones children. Criminal law should be reserved to prevent negative actions, whereas it seems contracts regard an exchange of positives in a defined relationship. Presumably in a libertarian state (is it a faux pas to say those words together?) some third party prosecutes a murder, with well defined limits on that third party (the law chapters/other books will be interesting!). As long as "implicit" contracts are defined before hand there should not be too much problem (?). It seems many problems occur due to post hoc analysis and claims. Perhaps implicit is the wrong word, much too open to abuse and ad hoc/post hoc manipulation. "Natural contract"? [like a "natural monopoly"?].

As far as military contracts, I believe the view is that the penalties for breach should be monetary damages, as in most breaches, not imprisonment, as it is in the military situation. You generally aren't locked up for breaking contracts.
I also strongly disagree to imprisonment; however those terms are part of the contract, which is agreed to [excluding the draft]. This is probably partially a hold over from the bad old days when one was rounded up into the army, who used a guaranteed threat of prison/death to induce one to risk danger in battle. Now that military service is less coercive I have to assume that this is not a deal breaker, and might even have some positive value [more faith that those you must count on will have more incentives to quash their doubts? As a stick to help force yourself to do something you want, but fear?].

Jon writes:

I agree with Rothbard's critique of libel and slander law. The Western world condemns Singapore for using defamation law to silence dissent; but once you buy the principle of banning false, damaging statements, how is Singapore in the wrong?

Perhaps because there is no such principle underlying the law of defamation. The principle is that if you choose to make defamatory statements, you must compensate the defamed person for the harm thereby occasioned. Just as with contract law and the doctrine of efficient breach, you have the freedom to choose.

Let me add that in the Google age, Rothbard's case against libel and slander is stronger than ever. False claims abound on the Internet. If believed, many would be very damaging. But most Internet users have the common sense to ignore unsubstantiated accusations, so in practice they do little harm.

No harm, no foul. The award of damages would be very slight if hardly anyone read/believed the libel. As is so frequently the case, the common law governing this field has much more inbuilt wisdom than most people realise.

The Cupboard Is Bare writes:

Sorry Jon,

You can't assume there's no harm unless you fully understand the nature of someone's business and the way in which it operates. Anonymously making it appear as if a landscape photographer is a pornographer who is also affiliated with various sex dating sites and then using "privacy protect" to hide the identity of the owner of the offending websites, so that the landscape photographer is unable to prove that they are not responsible for those websites, can very easily interfere with the photographer's ability to do business.

The unintended consequences of the anonymous person's irresponsible behavior is that it may introduce third parties into the mix and move the situation from the Internet into the real world.

So, don't be so quick to say, "no harm, no foul".

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