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Jason Kuznicki, Grant Babcock, and Aaron Powell discuss the first part of Murray Rothbard’s book The Ethics of Liberty.

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

Jason Kuznicki is the editor of Cato Books and of Cato Unbound, the Cato Institute’s online journal of debate. His first book, Technology and the End of Authority: What Is Government For? (Palgrave, 2017) surveys western political theory from a libertarian perspective. Kuznicki was an assistant editor of the Encyclopedia of Libertarianism. He also contributed a chapter to libertarianism.org’s Visions of Liberty. He earned a PhD in history from Johns Hopkins University in 2005, where his work was offered both a Fulbright Fellowship and a Chateaubriand Prize.

Grant Babcock
Philosophy & Policy Editor

Grant Babcock is the Philosophy and Policy Editor of Lib​er​tar​i​an​ism​.org and a scholar of political philosophy. He is especially interested in nonviolent action, epistemology of the social sciences, social contract theories and criticisms thereof, and finding libertarian‐​compatible responses to cultural problems.

Murray Rothbard wrote The Ethics of Liberty in 1982 as a full moral theory of the ethical considerations libertarianism requires and what these considerations would prevent the state from doing. This week we’re analyzing the philosophical framework he lays out in the first part of Ethics.

We talk about the difference between natural law and positive law, the is‐​ought problem, Rothbard’s views on utilitarianism, and what Rothbard thought the task of political philosophy was. What is the purpose of humanity? What is essential to human nature?

This discussion is continued in this followup Free Thoughts episode on part two of The Ethics of Liberty .

Show Notes and Further Reading

Murray Rothbard’s The Ethics of Liberty (1982).



Aaron Ross Powell: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute. I am Aaron Powell and I’m joined today by my colleagues Jason Kuznicki and Grant Babcock.

Today we’re recording the first of a series on Murray Rothbard’s 1982 book The Ethics of Liberty and this is the book where he attempts to set out his full moral theory of the state, his ethics of what liberty requires and what it prohibits government from doing. So this is his big statement of libertarian ethics.

Part one of the book is this short little part about natural law before he gets into all the questions about the state. So what is Rothbard doing here?

Grant Babcock: Right. So this is an interesting book to me I guess I should start by saying because I’ve long been calling myself a Rothbardian, but I’ve never actually read Ethics of Liberty. I’m mostly more familiar with his economic works and some of his journal articles and that sort of thing.

So like you said, this is Rothbard’s attempt to sort of formally lay down his ethical system and chapter one is he is situating that project in this sort of broader natural law tradition. So he identifies certain historical strains of natural law thinking. He’s especially interested in the scholastics.

He says, “I’m not going to attempt to lay down a full proof that natural law thinking is the right way to think about ethics, but I will at least give you some context.”

Aaron Ross Powell: This is one of the interesting things in this book is that a lot of – I think a lot of our criticisms, especially with this part one, a lot of things we’re going to say are he didn’t do a very good job of defending this or he didn’t work out this argument very much. So he’s telling us upfront, “That’s not what I’m trying to do. I’m going to basically assume that these arguments have already been made or made well enough by others and just see where they go.”

Jason Kuznicki: Well, the fact is a lot of these arguments had been made in other books that his audience was likely to have read already and I think that for a lot of this entire first part, the sort of elephant in the room is Ayn Rand who also claimed to advance a natural law theory that was secular or not necessarily religious at least and that would be a foundation for a classical liberal understanding of property rights and market process and the like.

I think Rothbard knew very well that just about everyone would have read Ayn Rand and he seems to take that as a sort of background knowledge and I don’t believe even mentions her once in the text. But that has to be what he’s relying on I would say.

Aaron Ross Powell: What is natural law? We should probably get that out right upfront before we go into the specifics of Rothbard’s theories. What is natural law? How is it different from say other moral theories like utilitarianism?

Grant Babcock: Well, first I guess you have to distinguish natural law and natural rights, which are slightly different. So I think a lot of libertarians are familiar with natural rights thinking because we say, “OK, well, these are the rights that we have as human beings that are either God‐​given or discoverable by reason.” But natural law is sort of a broader concept. Rothbard here talks about it in terms of – these are to the social sciences what – like the laws of physics are to the natural sciences almost.

Jason Kuznicki: That’s a really, really strong claim. I mean that’s something that seems like it’s not necessarily so easy to justify because I can readily agree that reason is a part of man’s nature but it doesn’t seem quite so clear without doing a lot more explanation why reason is the part that should always control or why reason is the essential. That’s something I felt like was kind of deficient in the text.

I could easily see someone coming up with a very different social theory and also claiming that it was based on man’s nature and saying that survival of the fittest is man’s nature and the natural end toward which we all incline is in fact a violent competition and reason might be useful in that, but it’s not to the end at which we aim. It’s a means to the end of passing down our genes, for example.

Aaron Ross Powell: He does make the argument – I mean this is similar to something Rand says that reason is – I mean effectively infallible, that reason is a legitimate means. If we apply a reason, then we get truths about the universe, that this is how we do it.

Grant Babcock: Or this is big‐​R rationalism.

Aaron Ross Powell: So what reason do we have to think that that’s true?

Grant Babcock: Well, I don’t know if we’re going to solve the rationalism‐​empiricism debate in an hour‐​long podcast. But I mean it seems reasonable, right?

Jason Kuznicki: Well, I mean I would say that if we consider the alternative to reason, I think we find ourselves in a preferable place operating by reason. What I see as his real target here though is not necessarily rationalism and empiricism, but rather what he takes as proper role of reason. He criticizes David Hume in particular for Hume’s famous line that, “Reason is the slave of the passions,” and Rothbard wants to elevate reason to something much more than that.

Now, he may be right about Hume saying this. He certainly is right about Hume saying this, but he is not right that all philosophy after Hume is in the same vein. It just is not true.

The entire tradition of Kantian philosophy for example says that in fact reason has certain objective laws to which and that these have a foundation on which morality is built, that it’s not necessarily in human nature but it is in reason and we can conform ourselves to reason if we choose. If we want to be reasonable, then there are things that we are obliged to do.

Aaron Ross Powell: So then he moves on in the second chapter to argue that natural law is in effect a kind of science. It’s facts about who we are, what we are, what we ought to do, that we can discover true reason and he contrasts this with other methods, faith‐​based methods of discovering truths. So what do we think of that?

Grant Babcock: I mean he’s certainly making more controversial claims in this chapter than he was in the first chapter, which was mostly just expositive. I guess on the very first page of this I wrote in my margin – Sir Rothbard writes, “If A, B and C, et cetera have different attributes, it follows immediately that they have different natures.”

I wanted to know – the worry here seems to be not so much do people have natures, right? Is there something we can positive all humans that’s – but it’s essentialism about human nature, right? That – I could say that – I don’t know. What’s a thing to [Indiscernible] essential about human nature? Classical liberals often talk about, oh, humans, they truck and barter, right? Well, that seems kind of silly and reductive to me. Like someone who’s an existentialist might say, “Human nature? Look, I can …”

Jason Kuznicki: I can readily supply reasons to truck and barter that have nothing particular to do with nature and I can in fact say that I don’t think that humans are by nature disposed to truck and barter because if we were, then you would see humans doing that even at an encouraged disutility. You would see them doing it even when it made no sense to do it, when it was economically disadvantageous to truck and barter. But we don’t. We trade when we think we can get an advantaged by trading. So that’s not human nature. That may be reasonable but that’s not something that we do just because it’s who we are.

Grant Babcock: Right.

Aaron Ross Powell: Well, this is where he – I mean when he’s pointing to some of the basics of human nature, he begins with things like we need to eat, right? That these are just physical characteristics. If we don’t get enough sustenance, we die. But that seems slightly different from behavioral traits and then it brings up this – when he wants to make this natural law of science, he has this line where he says that – where does he say – he says that natural law – a criticism of natural law is who is to establish the alleged truths about man, which is going to be important because he drives everything from these like unbreakeable truths about man’s nature.

So who’s going to establish those? Because one of the problems we run into is most people disagree with Murray Rothbard about the varieties of ethics, about what ethics entails about the state. So there are lots of disagreements as to who’s to do this. He says – this is where we get back to. He says it’s man’s reason. He says man’s reason is objective, i.e. it can be employed by all men to yield truths about the world to ask what is man’s nature is to invite the answer.

But that doesn’t seem – I mean to analogize this as a science, so we can run these experiments and see what happens, we don’t really have a method. We can test what temperature the water boils at, right? And we can test physical properties or do experiments with them. But if you and I disagree about the characteristics of ethics, how are we …

Grant Babcock: Let me interrupt you here because Rothbard isn’t using science in the sense of experimental lab coats and beakers, right? Because he thinks praxeology is the science of human action, right? It just means sort of systematic, justified knowing, right? So it’s not that we need to look out in the world and see that this is true or false, right? And that’s science.

Jason Kuznicki: Well, I mean that’s a kind of science if we can use that word that sits rather badly with the philosophy of science as it is more often described elsewhere where what scientists do is that they set up hypotheses and try to knock them down. If you look at science as that sort of discipline where it precedes by falsification, then praxeology isn’t a science. Praxeology is a set of deductive arguments from axioms and that’s a very different thing.

Grant Babcock: Right.

Jason Kuznicki: It’s a completely different thing.

Grant Babcock: Yeah, right. So what I’m trying to point out is that this is a – I don’t know if you want to call a non‐​standard usage of the word “science” when Rothbard says …

Jason Kuznicki: Yeah, I would say certainly it is.

Grant Babcock: This isn’t the only time he does that and we will get into that a little later I guess. The most obvious one is that when Rothbard says someone is a libertarian or that in outcome is libertarian, he means that libertarian is an adjective meaning agrees with Murray Rothbard.

Jason Kuznicki: I would say also just as a pure aside, for claiming to advance a non‐​religious argument, he certainly relies on a lot of religious authorities. There’s William Kenealy. There’s Henry Veatch. There’s Alvin Plantinga. There’s Professor Sadowsky who’s a Jesuit. I mean there’s a lot of religion in his footnotes for advancing a non‐​religious argument.

Aaron Ross Powell: Well, is this just because – we call it the accident of Thomas Aquinas?

Jason Kuznicki: It could be.

Aaron Ross Powell: That this particular natural law is not dependent upon religion but the main guy who articulated it happens to be Catholic.

Jason Kuznicki: Well, I mean I – if you don’t count Ayn Rand, yes.

Grant Babcock: So on page 11, Rothbard says, “The natural law ethic decrees that for all living things, goodness is the fulfillment of what is best for that type of creature. Goodness is therefore relative to the nature of the creature concerned,” and then a little further down, he says, “In the case of man, the natural law ethic states that goodness or badness can be determined by what fulfills or thwarts what is best for man’s nature.” Do any of you by this?

Aaron Ross Powell: Well, this is – so later on he clarifies because it’s not exactly clear what that would even mean, because we – now we’ve just taken a step backwards and said whatever is good is whatever is …

Jason Kuznicki: Whatever is good is whatever is good. I mean this is circular. If I were to play David Hume here, I would be rolling around on the ground laughing at him. He has defined goodness by that which is good.

Grant Babcock: I think it’s actually worse than that because I think he’s equivocating about good, right? Because – so if we’re talking – this is sort of a – who’s the – the goodness of a hammer is how well it hits the nail, right? Who was that?

Aaron Ross Powell: I mean ultimately it was Aristotle.

Grant Babcock: Aristotle, right, right, right. So Aristotle says like the virtue of a knife is cutting, right? But I don’t say that a dull knife is an evil knife. I say it’s a poor knife, right?

Aaron Ross Powell: Well, this is – OK, so this is to – to some extent, that’s to misunderstand because – so for ethics for Aristotle and for the ancients was how to live well.

Grant Babcock: Right.

Aaron Ross Powell: So you didn’t necessarily need to bring in like moral condemnation. A knife that doesn’t cut is a bad knife.

Grant Babcock: Yeah.

Aaron Ross Powell: It’s not a good knife. We wouldn’t call it an evil knife.


Aaron Ross Powell: … who doesn’t live the way that a person ought to is a bad person.

Grant Babcock: Right. I’m not saying Aristotle is making that equivocation. I’m saying that Rothbard is here where he’s talking about look, the – what’s good is what’s – it depends on what advances man’s end, right?

Aaron Ross Powell: I mean I think one potential problem with making that kind of argument is when you point to say – so on one hand, we point to the knife and the knife is a tool that was created by something, someone, for a purpose. So therefore we baked into the very concept of knife is the purpose of a knife. So a knife that doesn’t cut is one that fails the purpose of a knife unless say it’s decorative. Maybe it was created to be decorative and it’s not supposed to cut well, in which case then it’s not a bad knife of that sort.

For animals, we might say, well their purpose is simply to reproduce. That’s what their genes are pushing them to do. So one that doesn’t successfully reproduce is not a good example of a species, but neither one of those things seem to apply well to man.

Man was – unless we import a divine creator, man was not created by something for a purpose and then we also – I mean we’re encompassing – well, the only purpose that you have in life is to reproduce. Well, because then of course people who don’t reproduce are just bad.

Jason Kuznicki: But it’s trivially easy to look through history and find examples of good people who were childless. I mean I can’t say that George Washington was a bad person because he didn’t have kids. He was a great person. The same could be said of Jesus. He didn’t have any kids that we know about. He may have but we don’t know about them. If he didn’t, would that make him a less good person? That’s a definition that clearly does not seem to accord with what we usually mean by someone being a good person.

Aaron Ross Powell: Well, could you potentially solve it by saying a – that there’s a capacity level. So a knife that isn’t used for cutting. I have a knife that’s in the back of my drawer that I’ve never used to cut anything. But if I did, it would be really good at it, is a good knife and a person who potentially could reproduce is a good person even if they don’t. I mean …

Jason Kuznicki: Washington was married and he never had any kids. I don’t know. I mean that’s beside the point though. I mean the idea here, the distinctive move that Thomas would make is that we have the ability to reason, not the ability to reproduce. That reasoning capacity is the distinctive thing that we have that is our purpose. Like the sharpness or not of a knife and the knife can be closer to its [Indiscernible] toward its destined end by being sharper and by holding the edge for longer. Humans similarly could be more in accord with their [Indiscernible] if they were more reasoning or if they were more logical or more devoted to reason or practice reason better.

Grant Babcock: All right. I guess that sums it up. Before we head on, let’s talk a little bit about how Rothbard thinks we get from these I guess value‐​free statements about what man is to motivating normative statements about what man ought to be. So he says, “Wild asks a question crucial to all non‐​theological ethics. Why are such principles felt to be binding on me?”

Then he says – well, it’s because, quoting Wild, “If I made no mistake in my tendential analysis of human nature and if I understand myself, I must exemplify the tendency and must feel subjectively as an imperative urge to action.” Then he goes on to talk about Hume’s is‐​ought thing, right?

And then footnote he says, “Hume in fact failed to prove that values cannot be derived from facts. It is frequently alleged that nothing can be in the conclusion of an argument which was not in one of the premises and that therefore an ought conclusion cannot follow from descriptive premises, but a conclusion follows from both premises taken together. The ought need not be present in either one of the premises, so long as it has been validly deduced. To say that it cannot be so deduced simply begs the question. See Philippa Foot Virtues and Vices.” Then he gives a page number. So I mean have we – has Rothbard escaped Hume?

Jason Kuznicki: I have my own preferred ways of escaping from Hume’s difficulties. I don’t find this necessarily satisfying. It does not seem clear to me that we can derive an ought from a set of is‐​es. It seems like that as well is somehow importing the ought inappropriately.

Grant Babcock: Right. So how I like to put this when I’m talking to people who maybe aren’t as familiar with philosophy is when you’re trying to go from a nature to a normative system, right? About well, people are this way. In fact and therefore the way you ought to be is this, right?

So in the movie The Matrix, there’s the scene where Agent Smith or our antagonist confronts Neo played by Keanu Reeves and he has this speech called the – I don’t know what it’s actually called but I call it the Humanity is a Virus speech, right? And basically the point is that – you know, Agent Smith is trying to make is that – you know, hey Neo, you think that humans are good and worthwhile and worth saving, but actually no. Actually humanity is a virus that spreads and destroys and we would be better off without them.

So if Agent Smith is right about humanity, then what’s good for humans isn’t good, right? So you’re sort of smuggling in this assumption that you probably can’t if you’re trying to do sort of a foundational ethics kind of move. Does that make sense?

Jason Kuznicki: I think so. I mean what’s good for the malaria parasite is not good for humans. They’re in fact opposed to each other and of course we’re talking about humans. I mean it would be dropping the context entirely to say that we’re trying to find a universal good among different species. The question is, “What does the good consist of for us?” Now if I had been told by someone that my reasoning was defective on some point, I might – if I were a good person, carefully, soberly, calmly reexamine it and consider that I might be mistaken and perhaps come to a higher understanding of the problem or a better understanding of the problem and one in this account of moral reasoning would say that I had gotten better. I had improved. I had become in a sense a little bit of a better person.

It’s not clear to me that that’s the best account. I would say that it is not clear to me at least that I have become more true to my nature. It might actually be my nature that I am unreasonable more often than I am reasonable and that all of my distinctive moves in life are toward unreason in which case I might not really be of the same type as you. I might look human but it’s not really – how do we decide that this is the essential of human nature? My response to this would be to say that the decision to make this the essential of your nature is actually a voluntary one. We decide that we want to be reasonable and then say, “How does one derive conclusions from that?” which is not what – not what Thomas would say.

Grant Babcock: That doesn’t even get you where you wanted to go because you’ve made ethics a hypothetical rather than a categorical imperative, right?

Jason Kuznicki: That is the objection but then if the imperative, the hypothetical imperative is we ought to be reasonable or if you – when you want to do ethics, you ought to be reasonable, that is – if it counts as a hypothetical imperative which is something that Nozick actually suggested in Philosophical Explanations. If that counts as a hypothetical imperative, then it’s a pretty broad one. I mean that’s a really big, very all‐​encompassing hypothetical imperative and it seems to exclude almost nothing because it’s not – if you stay outside of that hypothetical imperative, you can’t have an argument. You can’t even have a discussion.

Aaron Ross Powell: Chapter three.

Grant Babcock: Yeah.

Aaron Ross Powell: On natural law versus positive law. So this is where he’s attacking the positive law notion that law is basically whatever we decide it is, that we create the law through our actions and then there it is versus the natural law which is a process of discovery, that the law exists prior to us or exists outside of us and we have to find out what it is.

So he says – I highlighted this because one of the things that Rothbard likes to do a lot is say there’s – in any given question, there’s only two or three possible answers and then show that one or two of them leads to nonsense or is impossible in some way and therefore the last one, which lines up with what Rothbard wants us to think, is the correct answer. He does that here and oftentimes, when he does this, he’s leaving out a lot of possibilities.

Jason Kuznicki: You’re talking about where the three legal principles of society can follow are traditional custom of the tribe or community, obeying arbitrary ad hoc will and the use of man’s reason in discovering the natural law.

Aaron Ross Powell: He says, “In short by slavish conformity to custom, by arbitrary whim or by the use of man’s reason. These are essentially the only possible ways for establishing positive law.”

My sense is in almost every instance where he does this, he’s missing other possibilities. So what possibilities is he missing here?

Jason Kuznicki: Well, I just don’t find this a very good picture of the world. I don’t think that it’s so easy to divide societies up into these three types and say this is a society that relies on reason. This is a society that relies on tradition. I don’t think life works that way. I think even in the most traditionalist societies at times, someone has a new idea and even in societies that are run by the arbitrary will of one individual, you can often find people who disagree. They might do it quietly. They might be in prison but I don’t know that this is really a good way of categorizing things.

Grant Babcock: Well, I think – I didn’t have this much of a problem with this because I think all he’s saying is like, look, broadly, there are three ways of saying what the law is, right? You could make reference to a lawgiver which is B, which is the – he calls it basically the arbitrary authority of some group of people. OK? You could have a traditional custom and he has common law in mind here, right? Or you could have natural law.

Jason Kuznicki: Yet the common law is the product of lots and lots and lots of individual acts of reason.

Grant Babcock: Right.

Jason Kuznicki: It’s really not that simple. You can’t just – you can’t decompose in this way.

Aaron Ross Powell: This is my reaction to it because I think Grant, you’ve given us a charitable reading of those three and it’s – I want to say not – it’s not compatible with his then paraphrasing of himself, with his “in short” because he says, “In short, by slavish conformity to custom,” which is not the same thing as just respecting custom. By arbitrary whim and – or by the use of man’s reason and it’s clear just by the language which ones he thinks is the best.

I mean it seems like this would be – a lot of the times we have say a Burkean approach to tradition or a Hayekian approach to tradition, which is not to say like we’ve got these traditions and we should slavishly follow them. But to instead say if these traditions are persistent for as long as they have, it’s because they probably contain some important truths, some knowledge and experience that has been built up over time.

So we should – we can certainly use our reason to critique them but we shouldn’t just toss them out willy‐​nilly. We shouldn’t simply ignore them or just whatever first idea comes to our mind institute that. Instead because we would be ignoring the generations of wisdom baked into these things.

Grant Babcock: See, I think that’s what Hayek is explicitly denying though that we can use our reason to make judgments about the goodness or badness of inherited traditions, right? Like Hayek says you can tinker around the edges and you should do it carefully, but he thinks that if you want to understand why this rule is the way it is, that that’s beyond the scope of human capability and that position is what Rothbard is attacking here, right?

Jason Kuznicki: I think that’s what he’s attacking. I’m not so confident that it’s Hayek. I do think that Hayek leaves a significant space for individuals to act on what they believe to be true despite tradition or despite convention and that this process is exactly what improves convention over time and in fact if you look closely enough at all of tradition and all of convention, it all came from something like that.

Grant Babcock: But that’s different than making rational judgments about the goodness or badness of traditional law, right? That’s more of a naturalistic evolutionary approach, right? We have random mutations, which is people just trying stuff, right? And then some of them are successful in that they replicate themselves and spread, right? Which is – but if we’re trying to – and Hayek even says, look, I wouldn’t say that a cockroach is good just because it survived, right?

Jason Kuznicki: Well, it’s not a random process though. I mean it’s an attempt to redress flaws that over time emerge in traditional ways of doing things. So a good example of this would be the history of the equity courts, which were created first to try to redress problems that the common law seemed to validate or seemed to sanction and that these courts were created to undo conclusions that were otherwise inexorable. And how? Through an articulation of a reason that could command common ascent.

Aaron Ross Powell: Rothbard also wants to rule out basically anyone but a natural law theorist doing C, which is using man’s reason to discover the natural law. So what he seems to be saying is that unless you’re doing natural law, the only way that you can organize society is by either slavishly following customs or being subject to the arbitrary whim of representatives of the state. But it certainly isn’t unique to natural law to say we can use our reason to critique the legal system of the society we find ourselves in. I mean a utilitarian can say, “I’ve got this system of utility and it creates a certain ethics and I can use my reason to look at that and see how it lines up …”

Grant Babcock: That law is not utility‐​maximizing. Therefore by this standard outside of the law, I can say the law is [0:30:15] [Inaudible]. I think that’s right.

Jason Kuznicki: Yeah. Somewhat later, he takes a very odd swipe at utilitarian’s – this is in chapter nine to skip ahead just a little bit. He takes a swipe where he says for the utilitarian who has no conception let alone theory of justice must fall back on the pragmatic ad hoc view that all titles to private property currently existing at any time must be treated as valid and accepted.

So he would actually put the utilitarian into the category of a slavish follower of tradition, which is really odd to me, because first of all, I don’t see utilitarians doing that in practice. They seem very happy, maybe more happy than I would like to tinker with the traditional systems of land title and second, that’s not what they say that they’re doing in terms of just theory. They don’t claim to be traditionalists in theory. They are quite the opposite. They’re quite the opposite of traditionalists.

So it’s – I’m not sure that he really can account for utilitarianism in this system that he’s developing.

Grant Babcock: Yeah, I was confused by that too but actually figured it out. Yeah. I solved the mystery.

Jason Kuznicki: Explain.

Grant Babcock: So in that section, there’s a – this is page 52, footnote 2. He says for an example of a justification of property rights, blah, blah, blah, see Mises in Socialism. All right? So I got on Mises in Socialism and Mises makes almost exactly this argument that Rothbard is attributing to all utilitarians, right? So Mises starts out by dismissing the possibility of a social contract or of a natural law. He says nonsense on stilts. He says necessarily – you’re going to have to pick a moment in time and say, “OK, now,” and then at that point you have the existing property relations and we’re no longer in a war against all and we’re just going to proceed according to this process, right?

He says that’s justified because having the law is better than not having the law and he says this idea that – you know, this objection that Rothbard makes that, no, you – because you might be then perpetuating some unjust holding of property by – and trying it in law. He says that’s silly. You can’t say that – by what standard, right? It’s not illegal because there wasn’t law before, right?

Jason Kuznicki: Well, I quite agree with Rothbard on that and either moral or technological progress can cause us to rethink property distinctions with good justification. So when people came to reject slavery as a moral evil, there was absolutely nothing wrong with rejecting the slave as property and saying, “No, actually they’re human beings and we’ve committed a terrible mistake. We’ve perpetrated an evil here and we have to redress that,” or likewise with technology where once we realized the value of the electromagnetic spectrum, we came to regard that as something that is best administered as a form of property or best viewed as a form of property simply because otherwise it’s not going to contribute to human well‐​being at all.

So I agree with that but I don’t see how a utilitarian would disagree. I don’t see how a utilitarian would be forced to say, “Well, no, we have to stick with the existing system.”

Grant Babcock: Well, I mean Mises just says it, right? He says, “We who only see the effective law which is to make peace must realize that it could not have originated except through a recognition of the existing state of affairs, however that has arisen. Attempts to do otherwise would have renewed and perpetuated the struggle. Peace can come about only when we secure a momentary state of affairs from violent disturbance and make every future change dependent upon the consent of the person involved. This is the real significance of the protection of existing rights which constitutes the kernel of all law.”

So like Mises is just massively wrong about this, right?

Jason Kuznicki: I would have to disagree with him there. I would have to disagree.

Aaron Ross Powell: So I think Grant’s point though is that when Rothbard is attacking utilitarians, he is simply attacking Mises and assuming that Mises speaks for all utilitarians and this – as far as a teaching moment goes, in general, one of the things that you need to be really careful about when you’re reading works like this, works of – I mean any sort of argumentative work but if you’re reading political philosophy and especially if it’s within your bubble. This is stuff that you’re inclined to agree with is when you come across an instance of the author saying here is a long intellectual tradition with lots of people who believe it and it can be dismissed really easily or they’re simply mistaken here and it’s totally silly and now we’re done. I’ve refuted it.

You should approach those claims with a huge amount of skepticism because if very smart, very educated people accept a theory, even if it’s one you disagree with and hold to it and have for a long time, then it’s probably not something that can be dismissed in a sentence or two. So it would benefit you greatly to go to the advocates of those theories and read them and try to understand what they’re saying because you will often find out always. I mean there are a lot of thinkers who are good at characterizing the arguments of the other side fairly.

But we all have – it’s easy to be unfair to our opponents and so take a moment and just think like – if it sounds like this long tradition is stupid, it’s probably not being characterized correctly.

Jason Kuznicki: And what’s more, that particular passage, the one that Grant read is very strange for Mises because Mises did support historical reforms. He did not say, well, there was a traditional system and everything since then that changed was wrong and we’re not allowed to change anything now. There were things that he did support in the way of change as to how property was administered.

So I’m not sure that he – and maybe he was just having a bad day when he wrote that. I don’t know.

Grant Babcock: Yeah, the whole thing is bizarre to me and what Aaron said about – you know, maybe if you’re trying to attack utilitarianism, don’t substitute a few paragraphs for Mises for all of utilitarianism. It’s a good rule.

I’m curious as to why he makes this only footnote reference to Mises when he’s talking about the utilitarians. But he calls out explicitly Robert LeFevre. Is that how you say that name? Later when he’s talking about self‐​defense. Is this just – does he have a bone to pick here? I wouldn’t be surprised. I mean Rothbard has lots of bones to pick, right? But – and he didn’t want to offend his teacher by – so he attacked utilitarianism instead or …

Aaron Ross Powell: One reason he might leave out mentioning Mises specifically here while going after specific thinkers elsewhere in the book is I feel like this early part of the book, he’s talking about a clash between grand intellectual traditions. So he’s trying to rehabilitate natural law theory, bring it back from the exile that it has been under for so long.

So he wants to take out the whole sweep of its opponents rather than just Mises. So maybe he’s making this mistake where he thinks that Mises represents all utilitarians but it would make sense to just attack utilitarianism as opposed to one particular thinker if that’s his project.

Grant Babcock: It could be that he thinks Mises is the best utilitarian. That’s I guess a more charitable reading and it’s a thing he might actually believe.

Jason Kuznicki: And yet I know some Austrians who would say Mises was not a utilitarian at all in any sense. So I don’t know.

Grant Babcock: Interestingly, Mises is not among those Austrians who think that. But I think you might be on to something.

Aaron Ross Powell: So then we move into – we’ve established natural law and how we get at those rules and so there – next he moves into what’s really important for the project of the rest of the book, which is natural rights and how humans get the rights. So he defines – he ends up defining rights later on. He says, “We shall be speaking throughout this work of rights, in particular the rights of individuals to property and their persons and material objects.” But how do we define rights?

Then he quotes as he often does another thinker to fill in the definitions. In this case, it’s Professor Sadowsky who says, “When we say that one has a right to do certain things, we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral one.”

I think this is an important point right here that’s worth mentioning because it comes up again and again and is often – at least when I hear forms of what I will call crude Rothbardianism, it gets forgotten which is Rothbard is very clear that the arguments he makes in this book and when he places limits on what the state may do and what we have a right to do with our person and property, that this is not what necessarily what morality dictates.

So he’s clear that there are instances where we have a right to do something and therefore the state cannot prohibit us from doing it.


Aaron Ross Powell: Or anyone else, yes. But it would be still morally impermissible for us to carry out that action and I think that’s an important qualifier throughout because I get a sense again from kind of the crude Rothbardian notion that often there’s this – if I have a right to do it, it’s fine. Like, that rights and moral permissibility mean the same thing and Rothbard declared that that’s not the case.

Jason Kuznicki: I would agree. I think that’s a very important distinction to make. Another sort of side point on this definition is that I sometimes hear from crude opponents of natural rights that you have this proposed – these proposed things that it would be wrong if somebody were to interfere with. Well, there’s a problem with that claim being natural because there’s nothing in nature that would stop people from interfering.

So these rights claims are not – they’re not self‐​enforcing. Like, for example, the law of gravity. It’s fatuous to say, well, obey gravity. It’s the law. You don’t talk that way. You don’t talk that way because gravity just happens and that’s what nature is. If it’s not doing just like gravity, then it’s not nature.

This is to my mind kind of a – it’s a very poor argument because first of all, humans are volitional creatures and it’s possible for a human who is conceivably quite similar to you but differently disposed to behave very, very differently. Then we have to ask whether that distinction is important and clearly it is in terms of how we judge people.

If I were slightly otherwise inclined, I might have been late to this podcast and that would have been a – perhaps a minor moral failing on my part.

Aaron Ross Powell: It’s a major moral failing.

Jason Kuznicki: Oh, yeah. OK, well …

Grant Babcock: This objection you bring up is – it’s one that annoys me too because it just seems to strike me as just the mere gainsaying of the idea that there are moral truths independent of any mind.

Jason Kuznicki: Yes.

Grant Babcock: Right. And that’s not an argument. That’s just asserting the contrarian claiming you’ve refuted it. What do we make of Rothbard’s claim in this chapter that’s the culmination of liberal natural rights theory? He says it starts with Locke but then it reaches its culmination in the 19th century works of Herbert Spencer and Lysander Spooner. Are they the peak of natural rights ethics, those guys? I mean I like both …

Jason Kuznicki: Well, I do too. Yeah.

Grant Babcock: Yeah.

Jason Kuznicki: I would like to think that maybe there will be still better arguments in this tradition in the future. It’s one that I can’t say I exactly belong to but it is one that is often very productive and very interesting. So who knows?

Grant Babcock: OK. So then to move to the end of part one here, he has a short chapter about the task of political philosophy and basically this is a – it’s short but it’s mostly a – I guess vociferous and forceful restatement of his annoyance with these people who think that we’re not describing – that we should only describe human behavior rather than comparing it to an independent standard and he has this sentence that I quite enjoyed.

“Let us then cast out the hobgoblins of Wertfreiheit, of positivism, of scientism,” where Wertfreiheit is a value neutralness.

Jason Kuznicki: Rather than an exorcism, I think a better way of sort of dealing with these might be just to note that these people always, always, always sneak back to normativity in one way or another. Inevitably they do.

Aaron Ross Powell: What do you mean by that?

Jason Kuznicki: Well, I mean this is David Hume’s famous claim that whenever someone proposes simply to set forth a neutral description of – and then – of how ethics is and then there’s a transition to ought. It is a mysterious transition to ought. A positivist still makes policy prescriptions and presumably still wants them to be carried out and to be value‐​free. Well, that’s a very difficult thing to do. It’s a notoriously difficult thing to do.

A lot of – I don’t want to endorse post‐​modern social theory but a lot of post‐​modern social theory does aptly consist of pointing out that supposedly value neutral science is in fact laden with values.

Grant Babcock: This is Rothbard’s big gripe with Coase, right? He says – you know, the Coasian conception of property rights is – claims to be scientific but actually it’s a moral one and incorrect moral one. My own natural law conception of …

Aaron Ross Powell: Give us the thumbnail sketch of Coase.

Grant Babcock: So Coase, he’s famous for several things but he’s an economist and one of the things he’s famous for is this paper that says if you assume, A, transaction costs, then it doesn’t matter at all where you assign the initial allocation of property rights, that you can just let people barter and they will arrive at some efficient outcome, right?

So for example, maybe I have a toxic sludge producing factory and you have a lawn, right? And I’m dumping my toxic sludge, factory sludge on to your lawn and you don’t want it there. But I do want it there because …

Jason Kuznicki: You need some place to put it, yeah.

Grant Babcock: Right. So Coase would say that we can’t – from first principles say that one of us is right. He just says, look, just assign property rights somewhere and it works out. Now, that’s not an entirely accurate presentation of Coase.

Jason Kuznicki: No, it’s actually quite unfair to him. What he was really noting was that this system would work great if there were no transaction costs, if there was no cost of bargaining and this is an assumption that doesn’t actually happen in the real world.

What he was trying to point out was that a lot of real world behavior can be explained by the fact of those costs.

Grant Babcock: Right, right. Yeah. Everything you said is correct. I will say however that I do think reading Coase who do get the sense that he thinks property rights are just these arbitrary instrumental constructions, right? And that’s the attitude that Rothbard is attacking. So that brings us to the end of part one of Ethics of Liberty where Rothbard is sort of setting out what the natural law is, its character and a bit of its contents. Then in part two, which we will be continuing with in the future, he talks a little bit more about sort of – first of all, filling in how we apply natural rights and natural law to ethical questions.

Aaron Ross Powell: And then what this means for the state. I mean this is – the next part of the book is really the meat of it and the fun part where he tells us what this means is that the state can’t do X, Y and Z.

Grant Babcock: You may have gotten the impression listening today that I’m not a big fan of Rothbard. That’s not true at all actually. I’m a huge fan of Rothbard. I’m a deontological anarchist libertarian. So I just eat this stuff up. I think – maybe not all but a large number of his conclusions about human liberty and about ethics are correct.

That said, I think especially for someone like me, who is sympathetic to Rothbard’s conclusions. You have to be careful to then not miss any sort of, I guess, jumps in logic, right? Because it could be the case that you agree that – all of Rothbard’s conclusions, right? But the arguments he gives for them might leave something to be desired.

That’s something I found reading Rothbard elsewhere is – he’s a really original thinker. He sometimes is less rigorous than he should be. He sometimes is a little sloppy in the way he uses technical vocabulary especially when he’s going outside of his central area of expertise which is economics.

Jason Kuznicki: But that’s not to say that his conclusions are necessarily false. One of the frequently mentioned, informal, logical fallacies is sometimes called the “fallacy fallacy”. When you find a logically‐​fallacious argument or even a factually‐​fallacious argument leading up to a conclusion, we can’t necessarily conclude from that that the conclusion is false. It’s just not yet supported.

There are ways of refuting but finding a logical fallacy or a defective argument is not necessarily one of them. It doesn’t necessarily lead to rejection of the conclusion.

Aaron Ross Powell: The short version of that being it’s possible to make a bad argument for a good conclusion.

Grant Babcock: Exactly.

Aaron Ross Powell: In our next episode in this series, we will be looking at part two of The Ethics of Liberty where Rothbard begins to apply these ideas to more concrete political problems including the nature of private property and exchange, land monopoly, self‐​defense, punishment and all sorts of other fun topics. I hope you will join us.

Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more about libertarianism and the ideas that influence it, visit us on the web at www​.Lib​er​tar​i​an​ism​.org.