George H. Smith criticizes Zwolinski’s discussions of risk, fraud, and the relationship between aggression and property rights.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In Part 1 of my critique of Matt Zwolinski’s article, “Six Reasons Why Libertarians Should Reject the Non‐​Aggression Principle,” I noted that I was not obliged to write detailed responses to Zwolinski’s sketchy criticisms. But it is nearly impossible to explain the flaws in three of Zwolinski’s “reasons” without going into a bit of detail. This will leave two additional points for the fourth, and final, part of my critique.

Of course, Zwolinski might claim that he could not cover everything in a single, brief article. But brevity does not excuse misrepresenting some of the positions that he set out to criticize, as we find with the last two “reasons” that I discuss in this part.

Zwolinski claims that the non‐​aggression principle (NAP) entails an “All‐​or‐​Nothing Attitude Toward Risk.”

The NAP clearly implies that it’s wrong for me to shoot you in the head. But, to borrow an example from David Friedman, what if I merely run the risk of shooting you by putting one bullet in a six‐​shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger? What if it is not one bullet but five?

Unless you have consented to play Russian Roulette, this situation involves far more than a risk; it is first and foremost a threat, and you have the right to defend yourself against legitimate threats. If someone shoots a pistol at you from a distance but misses his intended target on the first shot, then you don’t need to wait for a subsequent bullet to strike your body before exercising your right of self‐​defense, say, by shooting back. Similarly, if someone loads one or more bullets into a revolver and points it at your head, then you don’t need to wait until he pulls the trigger before you may respond with defensive violence, so the number of bullets in the revolver is irrelevant. The mere pointing of a gun at your head qualifies as a serious threat, even if, unbeknownst to you, Zwolinski’s revolver is empty. (See my detailed treatment of threats in “Justice Entrepreneurship in a Free Market” and “Justice Entrepreneurship Revisited,” in Journal of Libertarian Studies, 3, 1979). Zwolinski continues:

Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway (what if we suffer a heart attack, or become distracted), or when we fly airplanes over populated areas.…

Here Zwolinski raises the possibility of accidents, but accidents are in an altogether different category than deliberate threats. Suppose someone forces you, on pain of death, to walk a narrow plank across a deep chasm. Does this involve a risk? Of course it does, but this risk has been imposed by the threat of force, and that’s the relevant point. If you fall off the plank to your death, we would not properly call this an accidental death, as we do with automobile and plane accidents, since you were coerced into taking the risk. Similarly, if the hammer of Zwolinksi’s revolver strikes a loaded chamber and you are shot in the head, then your death would not be accidental, provided you did not consent.

If you don’t wish to assume the risk of driving, then don’t drive. And if you don’t want to run the risk of an airplane crashing into your house, then move to a safer location. (You don’t own the airspace used by planes, after all.) No scenario of the risks encountered in everyday life is remotely comparable to Zwolinski deliberately pointing a gun at your head–an act that any reasonable person would interpret as a serious threat.

Zwolinski claims that the NAP does not prohibit fraud.

Libertarians usually say that violence may legitimately be used to prevent either force or fraud. But according to NAP, the only legitimate use of force is to prevent or punish the initiatory use of physical violence by others. And fraud is not physical violence. If I tell you that the painting you want to buy is a genuine Renoir, and it’s not, I have not physically aggressed against you. But if you buy it, find out it’s a fake, and then send the police (or your protective agency) over to my house to get your money back, then you are aggressing against me. So not only does a prohibition on fraud not follow from the NAP, it is not even compatible with it, since the use of force to prohibit fraud itself constitutes the initiation of physical violence.

Zwolinski seems unaware that Rothbard analyzed the issue of fraud in the context of a title‐​transfer theory of contracts. As Rothbard wrote: “When Smith exchanges a bag of apples for Jones’ pound of butter, he is actually transferring his ownership rights [i.e., title] in the apples in exchange for the ownership rights to the butter, and vice versa.”

It is not as if Zwolinski needed to search obscure articles by Rothbard to find his treatment of contract and fraud, since it appears in his major work on “political ethics,” The Ethics of Liberty. (For a briefer explanation, see the Wiki article, Title‐​transfer theory of contract.) Here is an excerpt from Property Rights and the Theory of Contract (Chapter 19 of The Ethics of Liberty):

Under our proposed theory would fraud be actionable at law? Yes, because fraud is failure to fulfill a voluntarily agreed upon transfer of property, and is therefore implicit theft. If, for example, A sells to B a package which A says contains a radio, and it contains only a pile of scrap metal, then A has taken B’s money and not fulfilled the agreed upon conditions for such a transfer—the delivery of a radio. A has therefore stolen B’s property.

This analysis, which has been standard libertarian fare for many decades (Ayn Rand’s approach was very similar), rests on a distinction between a title to property and the possession of property. A title is a rightful claim of ownership and should be distinguished from physical possession. If a thief enters your house and steals your computer while you are absent, then you still retain the title to that computer even though the thief has physical control over it. And since to have a property right, or title, to a computer means the right to use and dispose of that computer, the thief is violating your property right to the computer so long as he maintains possession of it without your consent. In short, the thief, by exercising physical control over your computer without your consent, is forcibly preventing you from using your property as you see fit.

It is a simple matter to apply this reasoning to cases of fraud. Suppose I purchase a diamond ring from a jeweler for $1000, but I am given a fake diamond. According to our agreement, I transferred my title to $1000 to the jeweler in exchange for his title to a diamond ring. Well, he now has possession of the $1000 but I don’t have possession of a diamond ring, even though I have the title to one. Hence if the jeweler refuses to transfer possession of the property to which I have legitimate title, then, as with a thief, he is withholding my property by force. And if perchance the jeweler doesn’t have a diamond ring, then the title to the $1000 reverts back to me. Thus, once again, if the jeweler refuses to refund the money, he is again forcibly preventing me from using and disposing of my property as I see fit.

As with any theory, objections might be raised against Rothbard’s title‐​transfer theory of contract and its implications for fraud. But such objections are irrelevant to Zwolinski’s critique, for he doesn’t so much as hint that Rothbard even had a theory of fraud, much less one that meshes quite nicely with his title‐​transfer theory of contract.

Zwolinski claims that the NAP is “Parasitic on a Theory of Property.”

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

As before, Zwolinski seems unaware of how Rothbard dealt with the topic at hand. In “Property and Criminality” (Chapter 9 of The Ethics of Liberty), Rothbard clarified “the basic rule of the libertarian society” by stating “that no one has the right to aggress against the legitimate or just property of another.” As Rothbard put it in the second chapter of For a New Liberty , “the central axiom of the libertarian creed is nonaggression against anyone’s person and property.” Again, in the first paragraph under “The Nonaggression Axiom,” Rothbard incorporates the notion of property rights into his formulation of the NAP.

The libertarian creed rests upon one central axiom: that no man or group of men may aggress against the person or property of anyone else. This may be called the “nonaggression axiom.” “Aggression” is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion [of property rights].

Given these and many similar statements by Rothbard, it is very odd to complain, as Zwolinski does, that the “meaning and normative force [of the NAP] are entirely parasitic on an underlying theory of property.” Rothbard made precisely that point many times and in considerable detail by incorporating a theory of property rights into his conception of aggression. In other words, it is only by specifying the relevant property rights that we can identify aggression in the first place.

Again, Rothbard’s approach might be open to criticism, but for Zwolinski to state that Rothbard’s notion of aggression depends on a theory of property rights, and to offer this as a criticism of Rothbard when in fact it is essential to his conception of aggression, displays an ignorance of Rothbard’s ideas.

At least Zwolinski doesn’t completely miss the boat when he says that “’aggression,’ on the libertarian view, doesn’t really mean physical violence at all.” This relates to a distinction I mentioned in Part 1 of this series, namely a possible difference between “violence” and “force.” I will take up this topic in Part 4, along with Zwolinski’s other two points about pollution and the rights of children.