E130 -

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

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

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.

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 begin a discussion on the second part of The Ethics of Liberty. What is Rothbard’s universal ethic? According to Rothbard, how can property originally be justly acquired? What would ownership in a Rothbardian free market system look like?

Here is our discussion on part one of The Ethics of Liberty.



Aaron Ross Powell: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato institute, I’m Aaron Powell.

Trevor Burrus: I’m Trevor Burrus.

Grant Babcock: I’m Grant Babcock.

Jason Kuznicki: And I am Jason Kuznicki.

Aaron Ross Powell: Today we’re doing part two of our discussion of Murray Rothbard’s 1982 book The Ethics of Liberty, today we’ll be discussing chapters six through thirteen. Before we begin, there was a critique that came up on one of our Facebook pages a while back about criticizing the arguments made by people like Rothbard or Rand. The argument goes that these are key foundational texts, that you should approach them as works of libertarianism but not works that should be held to the same argumentative standards of say academic philosophy. And that you’re somehow misfiring, there’s something wrong with saying like, “Rothbard’s arguments don’t work for reasons x, y and z.” that that is unfair. And I thought it would be good to start with this question of criticizing, in this case Rothbard, because I think it’s something we’re going to do a fair amount over this episode. I think all of us were rather underwhelmed by the quality of the argumentation in this book. And so I will start by asking you guys I guess, is there a value in libertarians who are, I mean in many cases, very inclined to agree with Rothbard’s conclusions about the proper role of the state or the lack of the states role in any way? Is there something valuable in criticizing him? Are we going wrong in attacking someone as central to the movement as he is? What’s the point in critiquing him philosophically?

Trevor Burrus: I think a good analogy here is, I mean it is valuable to critique him it’s intellectually honest, but it kind of reminds me of horror movies. So horror movies have had a huge evolution over the years and if you watch old horror movies your like, “This is pretty bad.” And I have some friends who are some very big horror fans and if you start criticizing something like John Carpenter’s Halloween you’re like, “This is a really silly kind of movie actually at the end of the day”, but we don’t understand the place of Halloween in the pantheon of horror movies how important it was at the time when it came out and how much it developed other horror movies into the future. So I agree but I can still criticize it. So I think you need to have both, you need to respect its place in terms of sort of jump starting things and there are things that wouldn’t exist if this did not exist, but then also criticize it through modern sensibilities and modern thinking.

Jason Kuznicki: I think the older I get the more I become a sceptic and one of the things that I am skeptical about is how people actually do philosophy. And it might even be said that a lot of philosophy, maybe all of it, is done backwards. That philosophers in fact begin with conclusions that they want to reach and then they try to find justifications for those conclusions. It’s not that they begin with axioms that everyone accepts and then transform them and find themselves surprised at the end of the exercise, they begin with conclusions and then try to put foundations under them. And to the extent that I think Rothbard is doing that, which I think he is, there is nothing necessarily wrong with it. What we can do, since a lot of us share his conclusions, is to take those justifications that we find useful and build on them and fix the other ones that aren’t so good or reject some of them and find better ones. And in that sense we’re all engaged in a common intellectual project, even if we will be sometimes critical of the things that he has to say.

Grant Babcock: Yes I think the end of what you said there Jason is right, exactly on the nose, it’s that like Rothbard isn’t a sacred text which is like the end of the research program and libertarianism is over and we just need to read this and apply it and then we’re done. It’s a living, evolving, growing, improving philosophical tradition and part of improving the argument for liberty means looking at some from the past that maybe were important but maybe could have been better. I also want to say, in terms of is it fair to apply the standards of rigorous academic philosophy to Rothbard, I guess maybe there is a case for that in other books but I think in the case of Ethics of Liberty like this is his attempt at a rigorous, philosophical treatise to justify anarcho‐​capitalism.

Trevor Burrus: So take it as he gives it.

Aaron Ross Powell: Okay so I guess we’ll get started. So we’re doing, as I said, chapters six through thirteen which is the beginning of the first half of part two of the book today. The first episode that we did on Rothbard was on part one and in part one it was his setting out of the basic system of natural rights that he saw himself as part of, it was providing the grounding for the theory that he was then going to explore through the rest of the book. And so in a sense, if you missed part one you should go back and listen to part one but if you don’t feel like doing that right now it’s probably okay because he begins part two by basically restating the summary version of what he did in part one, to the extent that it almost feels like this is the real beginning of the book and the other stuff was written later in order to fill in some of the missing details. So we’ll start in chapter six which is called A Crusoe Social Philosophy.
So the idea here is he’s going to construct a system of ethics by starting on the small scale. So we’re used to this in economics, like economics textbooks start with, you know there’s the one guy Robinson Crusoe and he needs to have stuff to survive so he starts building and then he makes trade‐​offs and then one other guy enters and now we’ve got trade. And you can see how the system works on the small scale before you add the complexity and that is exactly what Rothbard sets out to do for ethics. He says the abstraction of analyzing a few persons interacting on an island enables a clear perception of the basic truths of interpersonal relations, truths which remain obscure if we insist on looking first at the contemporary world only whole and other piece.

Trevor Burrus: Is that fair? I mean it’s interesting to start off with political philosophy as just basic ethical conundrums one person on an island and then add another person and maybe just person by person you get up to a country or something like that. But it’s odd because people aren’t actually created that way, it’s weird because if you contrasted this very straightforward rights based – like what is right for one person or wrong for one person to do is wrong when you make a bunch– and you contrast it to Hayek who kind of looks at society was never built up person by person, that is not the first sort of premise of trying to figure out how to do things correctly. I don’t know, is this a valid way of doing political philosophy?

Jason Kuznicki: I think it’s potentially a valid way. What’s going on here is that he is not in fact trying to construct a society, what he is trying to do is to isolate individual action and look at it because he is a methodological individualist and he believes that when you have an individual you’re looking at the necessary building block of any possible society.

Grant Babcock: That and I think the fact that there are certain things that are almost best illustrated by their absence. Like to understand what problem it is that we’re trying to solve with a contract system, talking about trade and all that, we need to imagine what it would be like to not have that and then we can see why we would want it.

Jason Kuznicki: That said though there are problems here, there are problems because certain actions that would be in fact suicidal in a Robinson Crusoe situation are beneficial in an extended society. So if I were Robinson Crusoe and I decided that the first thing I wanted to do was set up a shoe factory that would be nuts. I would not survive, I would die, it would be immoral by Rothbard’s standards. But setting up a shoe factory in a larger society is actually at least a harmless thing to do, it might actually turn out to be a good business idea.

Aaron Ross Powell: Yes I think this is where he goes wrong in an interesting way and so to get to that critique we should walk through how he gets to that problem. And so he says, “Okay in economics we do this so we’re going to try do this in ethics” but then what’s interesting is that he basically tells us the same story in economics. And so there is this slide from justifying economic exchange to a system of ethics and the way that this works is he says, “Look, so Robinson Crusoe if he just stands alone on the island he is going to die. He’s got certain needs and he doesn’t have any knowledge, he doesn’t have the recipes for food and shelter and whatever else so he has to use his mind to go out and start changing the environment around him. And so he starts building these things and we get economic production, we get capital accumulation and then somehow we get an ethic of the good from that.

Trevor Burrus: Of some sort which apparently is pursuing life as far as I can tell, to the point that you can’t hurt yourself. One of the weirdest parts – and is this what you guys got out of it? – That the ethic of the good is synonymous with pursuing life.

Jason Kuznicki: I think so more or less. And what is difficult about this section is that economics in the Austrian tradition is supposed to be a value free science and he’s making a very strange transition from value free observation of economic activity to inferences about the good. He even says that someone who has a high time preference is acting in an evil manner.

Trevor Burrus: Immorally.

Jason Kuznicki: Immorally and that’s not immoral that’s just having a high time preference, it’s like having a higher preference for money or a higher preference for savings or for clothing or food or whatever. That’s not necessarily immoral or at least it is not the job of an economist to tell us that.

Trevor Burrus: Or punching yourself in the face, you might have a big preference for that.

Grant Babcock: Yes because if we think about property rights normally we think, “I have the right to destroy” whatever this thing is that I have. I am holding this book, I could shred it up and none of you three could restrain me or stop me or pass moral judgment on me.

Jason Kuznicki: Well I could pass moral judgment.

Grant Babcock: Well you could be wrong. But it seems that the idea of self‐​ownership, ownership over your body, is really important for Rothbard but he seems to rule out, for example, suicide.

Trevor Burrus: Not just suicide, eating a burger.

Aaron Ross Powell: Yes he’s very clear, he says, I will read you this quote. So he’s talking about let’s say Crusoe comes across some mushrooms that are poisonous.

Trevor Burrus: Are you saying Caruso or Crusoe?

Aaron Ross Powell: Crusoe.

Trevor Burrus: Because every time you say that I’m picturing David Caruso from…

Aaron Ross Powell: it’s not intentional on my part. So he’s come along this and he says, “Had he eaten the mushrooms without learning of their poisonous effects then his decision would have been incorrect, a possibly tragic error based on the fact that man is scarcely automatically determined to make correct decisions at all times, hence his lack of omissions and his liability to error. If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway, perhaps for kicks or for some other high time preference, then his decision would have objectively immoral – an act deliberately set against his life and health.” So we get this like, we need to apply our reason in order to survive so therefore the application of our reason in order to survive is the standard of value. And so he’s very clear he’s like anything that prolongs life is what’s good, or at least anything that would shorten life – as per eating the mushrooms even though you know that their poisonous – is objectively immoral. And this is a theme throughout Rothbard is that you want to reply, “It’s perhaps a bit more complex than that, Murray.” That he doesn’t seem to address all of the totally obvious examples of all sorts of perfectly reasonable decisions we make that do not have the effect of prolonging our life and often have the effect of shortening it like potentially having a burger, or smoking cigarettes.

Jason Kuznicki: Or just crossing the street at times.

Trevor Burrus: Leaving your house.

Jason Kuznicki: Now a better standard might very well be something like the life that is proper to man and to revert to a more explicitly Aristotelian approach to ethics. That’s closer to what Ayn Rand does and it think that’s more defensible than prolongation of life per se.

Trevor Burrus: Well this is his Rand influence I think because he was very influenced by Rand I think in a kicked out kind of a way.

Grant Babcock: Yes he wouldn’t divorce his catholic wife.

Trevor Burrus: Ah that’s it, of course, so transgression number 937 on the list.

Grant Babcock: So he was tried in absentia and declared a heretic.

Trevor Burrus: Okay, no one expects the Randian inquisition. So you see, I mean this is very Randian which is interesting as Jason said, the value free element of Austria, “we’re just going to get a bunch of elements to see how they work together best” kind of idea. But he’s writing an ethics book so he has to have something in there that’s…

Grant Babcock: Yes there are several weird things about this; the first is it seems consequentialist right? I mean it doesn’t seem consequentialist it is consequentialist. And if you ask people, “Is Murray Rothbard a consequentialist?” they will say “No”…

Jason Kuznicki: He’s paradigmatic deontological libertarian.

Grant Babcock: Right. But then when he is trying to get his system off the ground he first appeals to the consequences of actions in terms of their effect on your life and then he seems to want to make this move that says, “Look, even if you say you don’t believe this really you do and I can tell because of how you act.”

Aaron Ross Powell: This is where he gives a very short version of argumentation ethics.

Jason Kuznicki: Yes on page 32, to of 33.

Trevor Burrus: You cannot argue against me that life is the highest value unless you have killed yourself and you haven’t killed yourself so therefore you cannot argue against me.

Aaron Ross Powell: Right, like if you genuinely don’t think life is the only thing to aim at then you would have committed suicide rather than having this conversation, which is obviously not true, I mean I could think there are lots of things that are more important than prolonging my life like happiness or good character or whatever else that wouldn’t lead me then to say, “Well then I should kill myself.”

Jason Kuznicki: Well I might find that my heroin habit was more valuable to me than prolonging my life but it just hasn’t killed me yet.

Aaron Ross Powell: Right, in fact killing yourself would limit your heroin habit.

Jason Kuznicki: That is also true.

Aaron Ross Powell: There seems to be an immediate and obvious counter example here that was never considered.

Trevor Burrus: Yes not like other philosophers where you have to think for a while, you think for about three seconds and you can come up with a counter example.

Aaron Ross Powell: Right, to be honest it actually makes me wonder whether the manuscript was read by people who disagreed with it before publication because there are so many instances like this one where someone goes, “No wait a sec, there’s the heroin example, there are countless other examples.” Like you may still be right but you need to address them.

Jason Kuznicki: And I’ve talked to quite a few professional philosophers about the argumentation both here and in Hopper and it just does not fly with them, not at all. And I think I have to agree, the worst we can say about someone who is arguing against life as the highest value is that they are a hypocrite – that’s the worst we can say about them. Not even necessarily that they are but that’s the worst possible. It’s not that their argument is false, it’s just that their not acting according to their stated principles which doesn’t proof the truth or falsehood of the principles.

Trevor Burrus: Or if you were like a very big environmentalist guy that hypothesized, “Humans beings should die including me but before I die I am going to devote my life to convincing other people to kill themselves first, that is the better use of my time than me just killing myself.” I mean there’s a lot of ways you can think of how you can get out of this without having to fall into his “trap” of proving him to be correct the whole time. So we were talking about this in terms of this Crusoe, or Caruso, situation where you are acquiring property. So he gets very close, he gets into the first acquisition of property which very Lockean, any problems that you found with the acquisition of property?

Jason Kuznicki: Well I have no problem with the acquisition of property, I do think though that choosing the Crusoe example or the Crusoe scenario as a way of justifying it is not necessarily the clearest way because a lot of the good effects of private property are most obvious not in a community of one but in a community of millions where private property allows comparative advantage and specialization and gains from trade to work really, really well. And you don’t see that on a desert island with one or two inhabitants or at best you see very little of it compared to an extended society.

Trevor Burrus: Well that’s only a problem if he actually wants to make an instrumental justification for property which I don’t think he does.

Aaron Ross Powell: Except insofar as it’s about prolonging life.

Trevor Burrus: Except for that.

Jason Kuznicki: Well yes and I would probably live a lot longer and have a much better life in a society of millions of people than I would living alone on an island.

Trevor Burrus: The weirdness to me about the property is – and one of the things I like about Rothbard, at least to me – is that he bites all bullets. And if you’re going to say that you acquire property by working it, by mixing your labor with the land, I mean it basically says that. It is always interesting because there was always this question when I first read Locke, I think I was sixteen or something like that: so you mix you labor with the land, so you reach down and dig a hole, you only own that hole right? That does not transfer into a parcel of like, “well now you own the divvied out parcel of this hectare.”

Grant Babcock: Right there is a boundary problem.

Trevor Burrus: Yes so if you’re going to have this mix in your labor, and he fully accepts this, that when you mix your labor with this one part of it you only own that part of it that you mixed your labor with, which gets crazy when you start thinking about it.

Grant Babcock: Could you give an example of how it sort of ends up getting crazy?

Trevor Burrus: So if you own a parcel of land right now, I mean I think Rothbard would say that if you bought a piece of land in the hills of Colorado or let’s say we’re colonizing Mars and you’re going to put a retirement home there but you haven’t done anything yet. So in his view you don’t even own it yet, I think. So the law might say you own it but they could be wrong about this.

Grant Babcock: Yes and he actually talks about this a little bit later when he talks about the homesteading of the American west. He thinks that the fees charged by the government for the plots were just like completely illegitimate rents and that if you show up and you settle then it’s your land and that’s all there is to it.

Aaron Ross Powell: So does is this lead though to an odd situation? So the only part of land which you can actually own is that which you actually mixed your labor with and that you improved as he tends to call it. Where you actually have to have done something to every square centimeter, does this lead to now, I mean the hip thing in building houses now is, “I am going to build the house all the way up to the edge of the lot instead of having a yard.” Does this almost require that kind of action because if you don’t then you don’t actually own those corners that you haven’t done anything with yet?

Trevor Burrus: Yes, I think you can walk around your land and move pine cones into circles or something like that.

Grant Babcock: He specifically disavows that actually when he’s talking about like you land on the island and he says if you do this thing where you maybe walk around the island and maybe put up posts or something he says then you own the fencepost you don’t own everything inside.

Jason Kuznicki: You own the fencepost but you do not own the spaces in between the fencepost where the fence is suspended over that place but you don’t own it.

Grant Babcock: I don’t know if he does talk about it in Ethics of Liberty but I know he does talk about it elsewhere, about this boundary problem and he says basically how you solve it is you have what is called a technological unit, which is you look at the facts of the activity that you’re involved in like maybe its farming, maybe it’s whatever it is and then your labor entitles you to how ever much of the natural resource it takes to do the thing. So you’re going to tell me that’s a non‐​answer and yes.

Trevor Burrus: You’re nodding already, I mean the funny thing is reading this as a lawyer – kind of a real lawyer, not a fake one like Aaron – and I like property law a lot but one of the really good things about property law, and it is an interesting question of how do you own a parcel and all this, but that it generally prevents conflict and prevents people from trying to predate on each other. But I am seeing Rothbard’s world and I’m seeing complete chaos where you like run onto someone’s property and you like build a little house and you’re like, “It’s mine now!”
He has this thing, and here is a passage from pages 63 to 64, so there is pretty much one edition of this book so if you have it, it says, “Suppose for example that Mr. Green owns a certain acreage of land and the north west portion has never been transformed from its natural state by Green or anyone else. Libertarian theory must invalidate his claim to ownership of the North West portion. Should another man appear who does transform the land and should Green oust him by force from the property then Green becomes, at that point, a criminal aggressor against land justly owned by another. The same will be true if Green should use violence to prevent another settler from entering upon this never used land and transforming it into use.” This is chaos!

Jason Kuznicki: Yes exactly it would be chaos and we can ask a very simple question here: what would we rather have people in society doing on the whole, would we rather have them working and improving the land and farming and mining and building factories or would we rather have them squabbling? And the reason that we have private property is not because we have mixed labor with land and then we have to that it always attaches to the person who has, really the reason I think we have private property is that it means that on the whole we get less squabbling and we get more industry.

Aaron Ross Powell: Grant, who was wearing an “I love Rothbard” button, looks like he would like to respond.

Grant Babcock: Yes. I think you guys are totally misreading this thing about, well Rothbard wouldn’t call them a squatter because they are not squatting, he is arguing against this thing governments do where they claim custodianship over large swaths of unsettled land and exclude other people from using it without their permission.

Jason Kuznicki: Well I’m not committed to endorsing that, I don’t have to. I can just say, “Look, there is a reason why we have private property and the reason is that it on the whole has good effects on peoples character and that’s got nothing to do with government land policy.

Grant Babcock: Well sure but Rothbard gets you there, all he is saying is you can’t just put up a fence over some empty lot and never let anybody go there just because you don’t want them to.

Trevor Burrus: Well I mean I think you’re right about him criticizing governments during this but we’re still in Crusoe land so we’re talking about basic morality here.

Aaron Ross Powell: Well I think the issue, and this is another one of these like meta‐​concerns I have with a lot of his arguments, is that Rothbard is extremely turned off by letting ambiguity enter into his system. I mean a lot of his objections to alternatives, we get to this later on when we talk about various theories of punishment, is that allowing this would allow a level of ambiguity into the system such that someone would have to decide, make judgment calls and if they can then it’s room for abuse, it’s room for the state…it needs to be banished.
So we need these extremely cut and dry rules that we enforce through libertarian justice. But there are many instances where it feels like instead of addressing ambiguity he’s ignoring ambiguity. So this is one where like yes we can set out the very clear rule where you need to actually have improved the land and improved the pieces of it that you claim to own in order to own it because you can’t just build the fence posts around it, you need to have improved it. But we don’t know what it means to have improved it and if you have improved it, like you’ve dug the hole, is that improving it?
If there’s a dispute, someone has to decide and it’s not a party to the dispute because they are obviously going to decide in their own favor. Is digging a hole an improvement? Maybe, or it’s making it worse. Does that improvement include the area that was just a hole or the land underneath it or the land three inches to the left of it? These are questions that can’t be answered by this bright line rule.

Jason Kuznicki: What about just surveying it, is that sufficient improvement? What if you’re not actively doing anything with the land but the land was surveyed by the original owner which does in fact improve it in the sense that you have adequately described its boundaries. Is that a sufficient improvement?

Trevor Burrus: Yes that’s an interesting one, I mean I don’t think Rothbard has an answer to that question.

Grant Babcock: I mean I think he would give an answer, which is no, I don’t know if he’s right or not.

Trevor Burrus: I mean the thing to me, again I have a bias in the law direction but, there are a lot of meta rules that exist in legal systems. And this goes into the thing of like property being a social construction more than what Rothbard is trying to derive from very basic premises – that we have rules because we are trying to diminish conflict. So he writes about adverse possession, which is in Anglo‐​American law the ability to take possession of someone’s land as long as you improve it and they don’t notice it or tell you to get off of it for 18 or 21 years depending on the jurisdiction. And so if I have a piece of land in the Colorado mountains and I am not watching it right now and someone has built a mill on it and I don’t go and check on it for 21 years then they can actually take title of that. Now this seems really bizarre and so he has a whole thing about how that works but the reason rule exists is to avoid chaos and unknown pieces of land that no one knows who owns them. And there are holes in the title system and holes in the title system can eventually consume the property system of an entire society. And it seems like Rothbard is not concerned with sort of meta principles of can we make a property system well‐​functioning over many generations where people die and have title holds and all these things like this. I understand why he’s not, he’s not doing legal philosophy.

Aaron Ross Powell: Well, in later chapters when he’s talking about what counts as theft, what counts as a criminal, he deals with the issue of we can’t figure out who the current owner is, we don’t have a title. Whether he does a satisfying job is another question. But that comes up later chapters and I want to try to stay as to the flow of the book as possible so I am going to jump now to the next part of this section, which is where he says like, basically his concern, in order for this to be a moral system – that he is talking about – that we can morally critiques people’s action, in this case prolonging life or not, he wants to set aside the problem of determinism and the lack of free will because he thinks it’s a problem if we actually don’t have free will. But here, and so I want to throw this out here as am I not understanding, because it doesn’t sound like he’s actually addressing the free will debate at all.
So he says, I will just read this little passage: “Some critics have charged that this freedom, (namely the freedom to apply our reason and make decisions), is illusory because man is bound by natural laws.” Okay, so that sounds like the free will debate but then he says, “This however is a misrepresentation, one of the many examples of the persistent modern confusion between freedom and power. Man is free to adopt values and to choose his actions but this does not at all mean that he may violate natural laws with impunity, that he may for example leap oceans in a single bound. In short, when we say that man is not free to leap the ocean, we are really discussing not his lack of freedom but his lack of power to cross the ocean given the laws of his nature and the nature of the world.”
And when I first read that my reaction was that is not at all what the free will debate is. The free will debate is not about whether man can choose to do things that are physically impossible, and if the answer seems to be “Yes he can’t choose those things” then there’s no free will, but instead whether his choosing is actually free or determined.

Trevor Burrus: So I think that this is a confusion that he has created, I think he is only talking about political freedom here, I don’t think it’s a free will debate. The first sentence makes it sound like that, like Crusoe – as in the case of any man – (it’s on page 33) “has freedom of will, freedom to choose the course of his life and his actions.” So it sounds like he’s talking about free will in the more metaphysical and less political sense, but then I think when he’s saying that you he is not free the ocean, I think the rest of it is about political freedom. So I don’t think he’s misunderstanding the free will debate. I don’t know, Jason, do you?

Jason Kuznicki: Yes I think lack of political freedom in this case would be that the government patrols the shoreline and whenever anyone tries to leap across the ocean they get shot. That would be political, but he’s talking about something that has nothing to do with whether we internally have free will, whether given the same initial set of circumstances we might have chosen differently, which is completely unrelated.

Grant Babcock: Yes I think what’s going on here is not that he thinks he needs to answer the determinists for his system to work, I think it’s that he is misunderstanding that free will has a specific meaning in philosophy that is not the one he is using. Right because if we look later in terms of how he applies this free will issue, it’s always in terms of attacking ideas of capabilitarianism – that when he thinks free will that thinks that people think you’re not free because you can’t everything you could imagine. And he wants to contrast that with freedom from restraint. I do think it’s an error that inhibits comprehension, definitely.

Jason Kuznicki: Well certainly, I mean a lot of people do like to try to conflate capacity and political liberty, which are different things. And I love capacities, it’s great that I have the capability to read or to play chess or whatever, but that is not something that is a political question, at least thankfully in the United States. That’s a question of individual human capacities, not about the arbitrary will of someone else forbidding a game of forbidding consumption of literature.

Grant Babcock: Does Rothbard need to say anything to the determinists?

Trevor Burrus: Not for this book, I don’t think, unless it is ethically meaningful. Like if you’re a determinist then it’s hard to talk about ethics in certain ways but most of the time political philosophy does not begin with a question of free will or determinism or whatever.

Grant Babcock: The only time I can think about it coming up is that he talks about the alien ability of the will a lot and that discussion sort of makes no sense if there’s no such thing as a will independent of just physical processes in your brain.

Aaron Ross Powell: Okay so at this point what we’ve gotten to is we’re still dealing with a single person in this chapter and how that single person comes to own things. And so the upshot is that and so the upshot is that a man owns himself and that he also owns anything that he transforms or produces. And so then chapter seven, interpersonal relations/​voluntary exchange, is when Rothbard starts introducing other people to this picture and we start seeing how trade functions and the benefits of that. And again this in one where he is basically making the same sorts of economic thought experiments that we see all the time. He is selling us on the benefits of exchange by saying here is comparative advantage and here is how exchange makes both parties, at least objectively, better off. And then moves into a rather nice summary of the role of capitalists in the society.

Grant Babcock: Yes I think the reason he is undertaking this whole discussion actually is he feels he needs to answer the communists basically.

Aaron Ross Powell: I flagged the two page paragraph of the overview of what the capitalist brings to a free society and why they’re not Marxist villains that I think is actually pretty terrific.

Trevor Burrus: Oh yes he has his moments, that is absolutely true.

Grant Babcock: Should I just read that bit?

Aaron Ross Powell: Sure.

Grant Babcock: “Thus the indispensable and enormously important function of Polk, the capitalist in our example of the market economy, is to save the laborers from the necessity of restriction their consumption and thus saving up the capital themselves. And from waiting for the pay until the product would hopefully be sold at a profit further down the chain of production. Hence the capitalist, far from somehow depriving the laborer of his rightful ownership of the product, makes possible a payment to the laborer considerably in advance of the sale of the product. Furthermore, the capitalist in his capacity as forecaster/​entrepreneur, saves the laborer from the risk that the product might not be sold at a profit or that he might even suffer losses.”

Jason Kuznicki: And if anything that is an understatement of what a capitalist does because capital also increases the value of labor, it’s not simply that the laborer gets paid a little bit in advance or several months in advance, it’s that the laborers work per hour is worth more when it can manufacture goods that are produced using advanced or capital intensive processes.

Trevor Burrus: I think it’s important though to distinguish between, like that’s a function of the size of the capital stock, it’s not a function of the private ownership of capital which what Rothbard I think is trying to defend here.

Aaron Ross Powell: So after the capitalist discussion he gives a little overview of what ownership in a free market looks like. This again is worth reading really quickly because I mean one of the nice things about this book is Rothbard is very good at summarizing himself throughout which I found refreshing and super helpful and something that a lot of other writers could learn from. And I mean Rothbard is a remarkably clear writer, he is a terrific communicator and I think it explains a lot of his popularity. So here he says, so we’ve gone through and looked at how man acquires property, how he acquires ownership, what sort of things he can own and then how that works with trade. And so he says:
“All ownership on the free market reduces ultimately back to a) Ownership by each man of his own person and his own labor, b) Owner ship by each man of land which he finds unused and transfers by his own labor, and c) The exchange of the products of this mixture of a) and b) with the similarly produced output of other persons in the market.”
And so that he then tells us, if we have a system where there is our concept of property, there is our concept of exchange and we respect all of those things then that is what he calls the free society or the regime of pure liberty. And then tells us, look the rest of the books is just the implications of the regime pure liberty.

Grant Babcock: An important thing to note while we’re on this section is on page 36 in my copy. He’s talking about exchange of goods and he says, “Apples are not simply being exchanged for butter or gold for horses, what is really being exchanged is not the commodities themselves but the rights to ownership of them.” And that will come up later when he talks about his theory of contract.

Trevor Burrus: Yes the ownership thing, as Aaron said with three type of ownership, ownership on the free market reduces ultimately to those three types of ownership. It’s interesting, seeing that he basically says that everything flows from this and I am sitting here reading about this – and since I am predisposed to think along these lines about what other people would say about this who are not libertarians for example – but what everything flows from is not ownership but something else having to do with more questions of initial physical allotment or things like this that you can’t reduce just as down to these basic questions.
And since Aaron sort of added that the whole book after this is just a sort of discussion of the implications of these exchanges, when someone comes along and sort of denies the entire premise of what is going on – and I don’t mean like a specific philosopher, I mean a pretty intelligent leftist for example or someone like that – and they say, “No you began at the totally wrong spot here, you need to start with…” And sort of thinking what they would say, where they would start in terms of we need to talk about a just society, we need question of what do people deserve, or something like this. And so they would refute the entire Crusoe – everything about this. They would say you can’t build it this way. But how would they start it then? Does the question make sense? And thus refute the simplicity that he is saying here, we just put these pieces together and then we build them off and we say, “you have ownership, people can’t take it.” Then we do this and we do this and they say, “No, that’s not that simple.”

Jason Kuznicki: There are all sorts of ways that you could try to throw a wrench into the system, for example you could deny that labor is property alienated, you are not allowed to work for someone else or that transfers of that type are illegitimate. And that would pretty well disrupt the whole thing whether or not you agreed with it. You might deny that the idea of mixing ones labor with property is legitimate. I mean to me frankly it does sound pretty metaphysical and I like to justify property with reference to what effects it has rather than with reference to this mixture that I can’t detect with an instrument or that I can’t always necessarily even tell with common sense has happened.

Aaron Ross Powell: I mean another way that you could try put it is if we’re right that he has not adequately argued for length of life as the ultimate value and the only thing that matters in judging the ethics of an action, then substituting something else in there presenting another standard would lead to a totally different set of conclusions about the nature of property regimes and just transfers. I mean if you provided a cogent argument that instead of like the good thing to do is whatever prolongs your life but instead that the good thing to do is whatever maximizes fairness, which I don’t think is true, but you could certainly make an argument for it. Then that would lead to something that would look like a different property right regime than this one.

Trevor Burrus: Well that is why I think it is interesting. So like the reason I brought this up is he has a kind of finders keepers, you are the first one there so you can homestead it. Now the reason you might be the first one to come across it has nothing to do with fairness or justice or anything like this whatsoever. On one level finders keepers is a conflict avoidance principle, it’s not saying that you really deserve this or this is yours for a good reason it’s that if you’re holding on to it and someone actually wants to take if from you then physical violence is going to result and so we are going to have finders keepers as just a good rule.

Grant Babcock: Yes when Hopper talks about this idea of first comers and later comers and who should be privileged with regards to property rights he really plays up that angle. He says look when it comes to un‐​owned things becoming owned your options are first come first served or we have these massive problems where we have to consider the interests of all these other people who may not even be born yet and it’s just not only impractical but impracticable – it’s not an option that’s on the table for how to actually organize a functioning human society.

Trevor Burrus: Well that’s why I think, like moving on the next part on chapter 8 where we talk about the meaning of ownership, and kind of coming back to my question previously that if each man is not entitled to full and 100% ownership then what does this imply? It implies either one of two conditions; 1) the communist one of universal and equal other ownership, or 2) Partial ownership of one group by another, a system of rule by one class over another. This is kind of interesting because this is weirdly consequentialist, they are both obviously stupid so they can’t be right? That is kind of implication of which other people might say, “No, you’re right, it has to be number 2. People have partial ownership of one group by another and the point of the political system is how to negotiate that problem – so I’m just going to just resist this. I mean it’s like he’s trying to do a reductio and a lot of people would be like, “What? I don’t think that’s a reductio at all, the point of the political process is to have people negotiate commonly on property, including your natural endowments.

Jason Kuznicki: Right, I mean I hope it’s not too pedantic to point out that Rothbard was an anarchist and he really did think that the political process was an instance of one class exerting control over another class.

Trevor Burrus: No it’s not pedantic at all, it’s a great observation. So we have one and two which people could just accept: Communist, every one owns everyone else – which always just seems as self‐​refuting by people – which I think libertarians are a little bit too…I just sort of say, I flip about saying, “Well that’s obviously not true” because some people actually believe that, or partial ownership of one group by another.
And so I mean yes politics according to Rothbard is like that but the reason that I brought this up and highlighted it is something Aaron has written about for example, you don’t own that is related to this in some way. The kind of Elizabeth Warren, you don’t own that, argument is…

Jason Kuznicki: You didn’t build that you mean?

Trevor Burrus: Yes, you didn’t build that.

Aaron Ross Powell: This is to some extent another possible objection to his property right regime, is the argument that Elizabeth Warren has made that lots of other people have as well; that you come into a world that has already basically in every way been proved by others, that everything that you do – all the benefits that you have – are the result of the improvements made by others. And if you’re taking the standard, progressive version of this what they mean is improvements made by governments. So they established the legal system and built the roads and provided your schooling and all of that and so because everyone has improved this stuff so everyone therefore has a partial ownership of it. Everything that you have is partially owned by everyone else and, at least to an extent, what that means is that you now need to pay taxes or obey the law or do something to discharge that debt.

Jason Kuznicki: Yes but you can easily deny that. Robert Nozick very clearly does so saying that, I believe the example he used was if your window is open and someone throws a book into your window, they don’t then get the right to demand payment for that. If you haven’t asked for it, even if you decide to keep it, it doesn’t create an obligation in you.

Trevor Burrus: Possibly, but the reason I wanted to get to that question is because, the question I was saying well what would left wingers thing about this, is that this Crusoe example is actually completely unhelpful for that reason. It doesn’t actually give us almost anything about how a person should behave in this world because you don’t walk into the world on a desert island with no preexisting or anything that you don’t like owe people for, now Jason’s point is well taken, maybe you don’t owe everyone but you might owe some group or some subset of people or some group we call the government because they gave you roads and a school and traffic lights and the drug war – well maybe not the drug war – but things like that. And so you owe them for this reason and I think that that is the prevailing ethic of not even just leftists but even a very strong subset of conservatives. I think it’s a pretty challenging objection to this sort of simplistic system. Grant you’re looking at me like I’m crazy.

Grant Babcock: Well I disagree strongly that it’s a good objection to Rothbard’s system.

Trevor Burrus: I said cogent, I mean I don’t mean I’m convinced by it, I am going to quit my job and go work at center for American progress.

Grant Babcock: Well I think the reason all of us are in this room and not, you know, somewhere down the street…

Aaron Ross Powell: We’re not doing a Rothbard episode of the Center for American Progress.

Grant Babcock: Yes, is that we think these are silly arguments for reasons Jason pointed out.

Jason Kuznicki: If someone gives you a gift that you are actually incapable of refusing, then you’re acceptance of that gift does not create an obligation, it could not have been otherwise.

Grant Babcock: And it’s also a completely historical one in terms of where states actually come from. And just below this Rothbard starts pointing out that in some ways this idea of us having these obligations just by virtue of existing, it’s only compatible with some kind of weird aristocracy where he says, “Let’s consider the alternative too that one person or group of persons G, are entitled to now only own themselves but also the remainder of the society R. Apart from the many other problems and difficulties with this system, we cannot have a universal or natural law ethic for the human race. We can only have a partial and arbitrary ethic similar to the view that Hohenzollerns are by nature entitled to rule over non‐​Hohenzollerns.

Aaron Ross Powell: So I noted this because this is a big part of his argument, is that his system – this regime of pure liberty – is universalizable in a way that pretty much everything else would not be. And in a system of ethics you must be able to universalize it in order for it to be legitimate. But my question there is, because he doesn’t really offer an argument for it, he basically asserts that.

Grant Babcock: I think it’s because he thinks it’s obvious.

Aaron Ross Powell: Right, and so my question is, is it obvious? Is there a way outside of saying that we have a system where everyone has these certain kinds of rights self‐​ownership? What is on its face wrong with say a system that says, “Look, I’ve got a universal ethic and what it says is everyone must follow these rules unless you have red hair, in which case you have to follow these rules.” And that is completely universal it’s just that what you do is just different based on whether you have red hair or not.

Trevor Burrus: You’re just discriminating against me Aaron, I know you’ve always wanted to put red heads in a corner.

Aaron Ross Powell: There is that category of unprotected classes in the constitution and I would put red heads in there but what is on its face wrong with that sort of system besides that it seems to clash with our libertarian intuitions?

Jason Kuznicki: Well it also in a sense seems to clash with intuitions that are widely shared on the left that there ought to be legal equality that legal equality is in some sense important.

Trevor Burrus: Well the funny thing is that, I mean Aaron asked as really good question, and everything I am now going to say should be construed as indulging into this question of like if you wanted to say, because I have been reading a lot about eugenics for example or any sort of racism, and say that there are inherent differences between people, there is actually no reason that people should have equal justice around them because there are stupid people or there are different races or whatever classification you want to see. I mean we already give legal disabilities to people under a certain IQ or certain ability, certain ages. So we have a system for functioning adults but if you wanted to endorse, like Jason said, you are going against liberalism in the oldest biggest sense of the word, the thing that we all are in this town – mostly we at least pretend to be. And so you’re going against the basic equality of man but there is nothing about this obviously that any political system has to endorse a basic equality.

Jason Kuznicki: Have you seen the Hohenzollerns?

Trevor Burrus: They are the hypochondriacs. What’s the word?

Grant Babcock: Hemophiliac?

Trevor Burrus: Hemophiliacs.

Jason Kuznicki: No those are the children and grandchildren of Queen Victoria, she was the origin.

Grant Babcock: I just want to interrupt for a minute and say that I think in some sense this is Rothbard at his best, what he’s trying to here where yes he’s probably wrong that he has logically exhausted the possible ways of arranging people’s ownership of other people or not, but what he has done is taken that liberal tradition that goes back to Locke and that idea that in the state of nature everyone has only reciprocal authority over anyone else and you have this bubble of rights. And he shows, I think compellingly, that what that implies is that when we endow the actors of the state with special privileges basically what we have done is said, “You have to throw the enlightenment out the window if you want to get there.”

Jason Kuznicki: And I do more or less agree with that, at least among the choices presented, one is very obviously preferable and that is the liberal alternative. But there are a lot of choices that aren’t presented, you could be a non‐​cognitivist about self‐​ownership, you could just say, “Look, ownership is not a thing that appertains to people just like it appertain to numbers. You can’t own five; you can’t own the Pythagorean Theorem.

Grant Babcock: And there is a footnote here where apparently he did get someone to read the manuscript because it says Professor George Mavrodes of the Department of Philosophy of the University of Michigan and it says, “Also because nobody owns anyone or themselves.” And then Rothbard answers, kind of infuriatingly, “Since ownership signifies range of control, this would mean that no one would be able to do anything and the human race would quickly vanish.” And before we sat down I sort of dug into this a little bit and here is how David Gordon writes about this, he says, “In the way Rothbard is using the term, human beings must be owned.” And then there is a footnote that says, “This usage of ownership is quite common among the Austrian school of economics (See Mises’s “Socialism”).” And Mises says, we are kind of way down the rabbit hole here, but Mises says, “Regarded as a sociological category, ownership appears as the power to use economic goods. And owner is he who disposes of an economic good, thus the sociological and juristic concepts of ownership are different.” And then a little further down, “The significance of the legal concept of property lies just in this, that it differentiate between the physical has and the legal should have.”

Jason Kuznicki: There’s a lot of trouble with this though because yes it’s true that ownership signifies a range of control but lots of other things signify a range of control as well. I could rent a car and then I control it, but I don’t own it.

Trevor Burrus: We have some kind of possessory right.

Jason Kuznicki: Somewhat more horribly, I could take people as slaves and then I have control over them, am I the rightful owner of them? No, of course not.

Trevor Burrus: I like this point. So that is interesting, this is a new thing that I hadn’t really thought of with Grant reading that. You could just say not you are wrong, no one owns anyone. I am going to redefine ownership as a term that means not just that you have control, which is kind of interesting because then like maybe with turret’s don’t own themselves like.

Jason Kuznicki: Well I have allergies and you know that means I don’t fully control myself either. There is an enormous problem here, there really is.

Trevor Burrus: Not just that you have control but that there is a moral right or some sort of component to the fact that you own yourself and so maybe you can just actually coherently disavow owning yourself by redefining what ownership is as a moral right to do with it what you want. And since you don’t have that then the ownership resides in something else like maybe collectively or with the state. But I am saying that is a different, like ownership is not control and if he’s in a sort of stick to control…

Grant Babcock: Well the problem is he doesn’t, going all the way back to chapter six even and up through this point; he seems to be tacitly and sometimes even explicitly equivocating between just control, as in like property, and just “control simplistique.” And I am not the first person to make this observation but I think it’s worth saying, it’s that sometimes you can read something Rothbard says and go, “okay that couldn’t possibly be right”, but if you read him as ownership just meaning control then it makes sense. But then oftentimes it doesn’t actually get him where he wants to go.

Jason Kuznicki: Well yes there is a Venn diagram and the big circle is control and the somewhat smaller circle that only partially overlaps with that is ownership. There are times when I have both ownership and control and there are times when I just have control and there are times when I just have ownership without control. It’s only in a very, very limited sense that I control the shares of stock that I own, I can sell them, I can give them, I can bequeath them when I die but how much do I actually control the company? I can vote when a shareholder vote comes up but that is now not a whole lot of control.

Aaron Ross Powell: So at this point then Rothbard makes an argument that, he pulls from and cites Oppenheimer, that there are really only two ways for someone to really acquire the wealth and resources they need to live; that they can produce it themselves or they can coercively expropriate it from other. And this is where he makes another version of his universal ethic argument because what he says is that because we need to produce in order to live, we come into a world that is not set out for us to live without producing anything, that parasitism is not a universal ethic. If everyone was a parasite we would all die. And so we need to all produce and that is the ethical thing to do.

Grant Babcock: Well so there is two things to say about this I think. The first is that it’s just obviously false that any behavior which isn’t universalizable is wrong. The fact that if I flooded the earth, we would all die, does not mean that irrigating some croplands is wrong; the fact that everybody shouldn’t become a barber doesn’t mean that a barber is wrong.

Jason Kuznicki: Yes this is really a bastardization of Comte. Comte did not say that everyone has to be some sort of a universal man and do a bit of everything, what he was saying is that a maxim behind someone’s action ought to be universalizable, it ought to be something you could will that everyone desires likewise. And that is not that everybody needs to be a barber that would be something much more like everyone needs to make an honest living.

Trevor Burrus: Or have the ability to make a choice to be things, of which one of them could be a barber. It’s more universalizable than that and I mean the universalizability or just the basic ownership and voluntary exchange and self‐​ethic of the whole thing. So it’s a little bit different than that.

Jason Kuznicki: But I think Rothbard survives here because I could will that everyone make an honest living, I could not will that everyone be a parasite.

Aaron Ross Powell: But his criteria isn’t ‘could we will this’, it’s going back to his prolonging of life basis for ethics which is that in order to prolong your life you need to produce. And so therefore being a parasite goes against this life prolonging thing which it seems, if I am understanding correctly, seems just not true in the sense that first off there is just historically lots of and lots of examples of people who lived extremely long lives off the backs of others. And secondly, we can possibly imagine, you can see this in the animal kingdom, equilibriums that settle in perfectly well with as long as a certain percentage of people don’t cheat then a certain percent can get away with it and everything is hunky dory. So it’s not clear why according to this life as the standard of value ethic we must get to production only and not parasites.

Jason Kuznicki: I fully agree, if that is the basis of the ethics here there is a problem. If you are going to take the universalizability criterion as you standard of value, first of all you have to look at maxims. You have to be more properly Kantian. And then you can’t say prolonging life is that standard of value, rather you would have to say something like, “having a good and consistent and rational will” is the standard of value. And can you will something consistently and rationally and if you can’t do that then you have to give up on it as a maxim, but that’s a different ethical system entirely.

Grant Babcock: Yes I think that the distinction that he makes between parasitism and production and exchange is a good one and I think also that it’s true we like production and exchange and we don’t like parasitism in whatever forms it may take.

Trevor Burrus: Unless you’re a parasite.

Grant Babcock: Well yes but we are not. But here is the thing though, even parasites – one would imagine – don’t like other parasites right? I’m sure Aaron has a great example of a Greek person who said that the case is that justice is just whatever is good for me.

Trevor Burrus: Well that’s the Oppenheimer thing here, Oppenheimer is very explicit about it and again Rothbard is getting into something interesting, what he needs more is a better theory of universalizability, which basically is – and I think Grant’s observation that he’s sort of seeing either ditch the enlightenment or get on board with me – but if you were going to start at a further reason like this is why any political system has to be universalizable within these constraints. I think he missed that step and if he hit that step, like this is why people can’t rule over other people even if they are smarter and Hohenzollerns.

Grant Babcock: I think what is trying to do, he’s like assuming that you think that being a parasite is bad, being a Hohenzollern is bad right? And I think what he is trying to do is like he is drawing this line and showing that this thing that many people defend is actually on the bad side of the line.

Aaron Ross Powell: So we ran this risk when we started and it looks like we have all overestimated our focus and brevity.

Trevor Burrus: I never overestimate my brevity.

Aaron Ross Powell: We’ve run into our episode link limit while only making it through chapter eight instead of the planned chapter 13. So with that in mind I think we will have to add another Rothbard episode to our plan which will come, I assure you, much quicker on the heels of this one than this was came on the one before it. So..

Trevor Burrus: Tune in.

Grant Babcock: Smash the state!

Jason Kuznicki: Actually just dismantle it carefully so nobody gets hurt.

Aaron Ross Powell: Thank you for listening. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, visit us at www​.lib​er​tar​i​an​ism​.org.