Libertarian Answer Man: Does It Matter How Law is Made?

by Stephan Kinsella on October 19, 2021

From a libertarian colleague:

What do you think about this proposition: “It doesn’t matter how the law is made or who enforces it. What matters is simply that the law is reasonably and fairly enforced and it is compatible with a reasonable interpretation of our principle.” Isn’t this what we want?

Walter Block was cc’d and—as usual, sigh—he complained that the only problem with my remarks is that only a small group would see them. In other words, as usual, he’s exhorting me to “publish” more. So … in response, here’s my informal, quick reply (lightly edited):

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I’m not quite sure how to respond to these kinds of propositions. I think the law is the result of a process. Necessarily. Necessarily. Necessarily. This is important. I think it cannot be divorced from institutions. And normative analysis and theory plays its role in that process. My goal as a libertarian is primarily to understand liberty and in a political sphere, to understand what interpersonal norms should guide the development and evaluation of extant (positive) law. I think we can adjudge certain laws and state practices and policies as unjust to the extent they more or less obviously deviate from some incontrovertible norms, like the NAP or its propertarian concomitants, ¹ but I don’t think this leads to the idea that we are fine with any institution that enforces “law” “so long as” it complies with the non-aggression principle (NAP).

I think this in the end is confused and pointless. It’s like saying “hey imagine we are in the antebellum south where there is slavery, it’s all fine as long as we can run around telling the legislators and sheriffs and judges that ‘as long as you follow the NAP do what you want'”. I mean this is just not realistic. They have no interest in this so what’s the point of an unrealistic hypothetical? SURE, if there were a race of lizard aliens who dominates us but ruthlessly enforce the NAP? I mean I have fantasized myself before about a bunch of AI-powered satellites that just zap anyone who commits aggression. Would this result in a better world? Maybe. Maybe not. Perhaps. But so what? We don’t have a race of AI demigods trying to give us utopia. The idea that we can take the existing central state apparatus as a given and give it our blessing “with the caveat that” it simply “can’t violate the NAP”… It just seems … well I’m not sure what the point is. Sure, we can isolate the aggression that is at the root of bad institutions—taxation, slavery, etc. (as Walter Block does here, discussing the root problem with slavery: coercion).

I do not disagree that one tactical avenue we can use in discussing norms with normal people, is to try to show them that they already accept the NAP or similar libertarian principles (or the underlying norms, which I call libertarian grundnorms, borrowing from the Hoppean argumentation ethics idea of presupposed norms, and Hans Kelsen’s felicitous neologism), and then to show them that if they are consistent, logical, and understand just the bare minimums of economics, that the political norms they are proposing, are inconsistent with the libertarian proto- or grundnorms they already conceded that they agree with. The problem is most people shrug their shoulders when you point out an inconsistency; they are not professional thinkers and are used to compartmentalization and shrugging off the occasional inconsistency. So our problem really is that most people don’t care much about consistency, and are good at compartmentalization. Perhaps in part because this is the only way to reconcile their atavistic religious views with modern scientific and rational ideas.

I think your goal is “liberty” in the short or medium term. So you are thinking always in strategic terms. I get this, but this is the activist mentality. ² Even I am prone to it, but I always fear it can corrupt—make you start dismissing people who are into theory, ignore the division of labor and favor only your own little area, make you start to compromise just to make a single tiny win…. so I stick to theory and understanding. I don’t care if the activists insult me with their crude, anti-intellectual chants of “what good has your fancy theorizing done” or whatever. My being libertarian does not require that I become a high-time preference anti-intellectual activist sellout. I’d rather understand and maybe advance libertarian scholarship in my own little way, or practice it in my own life. To be honest, that’s enough for me, because it has to be, because we won’t achieve perfect justice in our lifetimes (unless Bitcoin is the spark that finally starts to undermine the state).

Luckily we are not in concentration camps, so our choices are broader—you can still achieve and live a good life if you are good at navigating these waters. Libertarians who hate to pay taxes and use that as an excuse for having no real job or career hate this idea, but whatever. So I view my job in life as to make money and accumulate social and economic power to be able to survive in this crazy world. And to use my perch to promulgate ideas of liberty and to develop it as an intellectual endeavor.

I view the state and its various horrible intrusions into public life as similar to a disease or natural disaster or other natural threat we need to respond to. ³ That’s my approach to it—have normal, good life, and then gird for the upcoming apocalypse; while in the meantime studying and promoting liberty and helping keep “the Remnant” alive. Libertarian activists hate when I say this. But I’m old enough and have been in this movement long enough—since 1981 or so—that … I don’t care. They stamp their feet and demand results now. I want results now too. I just don’t conflate fact and fiction. And I try not to stamp my feet like an insolent punk. I love Star Wars and Lord of the Rings but I know they are not real. I know the difference between fantasy/fiction and real life. No offense, libertarian activists. I have no problem being realistic (and I don’t care if activist libertarians sneeringly deride this as defeatist), and if being realistic, and honest, means I can’t be a good huxter exaggerating promoter that’s perfectly fine with me because I’d rather achieve my own liberty with my own money and success and live in a 62% liberty world as a man with integrity, than lie to myself and others in the vain hope of tweaking the knob from 62% to 62.1%—or, more likely, freedom is always being eroded so the 62% this year will be 61.5% next year, so I’m selling my soul and integrity in the vain hope of having a small chance at slowing down the decrement from 62% to 61.5%? I don’t play these games. I never pretend. I won’t do it. Whatever it is, it is, and if it’s bad, we need to know it and accept it, and build on that understanding of reality.

I think this can’t be answered easily in tight blurbs in an email. This takes lots of intellectual wrestling and knowledge and back and forth. Happy to keep engaging,

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Some of my further replies, with their comments paraphrased:

I generally agree with what you say. I’m realistic as well. We already live much better than the vast majority of humans who ever lived. My happiness doesn’t depend upon winning the world.

However, if we are interested in progress, and I am, I think we should strive to explain our philosophy in simple terms and avoid issues that divide us.

This presupposes that making progress comes from us explaining things to other people. That the roadblock to progress is that not enough people “get it”. And that we can change this by handing out enough ISIL pamphlets to our cousins and uncles at Thanksgiving get-togethers.

I don’t believe any of this. I think there are natural reasons most people are not interested in ideas and I don’t expect that to change anytime soon. I think it‘s futile to hand out the ISIL pamphlets to the brother-in-law. This is now the solution to liberty—to create an army of fellow Objectivists or whatever. It just won’t happen.

I do believe that we have a state because people believe in various myths. This is the theme of Hoppe’s The Great Fiction. I think we will have widespread liberty only when most people basically naturally accept the grundnorms of liberty. But I don’t think this will happen because we run around exhorting them. I really am a Nockian “Remnant” guy in this regard. ⁴ I’m happy to try but I’m not sanguine about our chances. I’m not afraid to admit this, and one thing that turns me off about rah rah activists is they become dishonest since they can’t admit reality because it bursts their activist bubble. ⁵ I think liberty can be achieved but I think the way to do it is to: wait. (And maybe Bitcoin will hasten it.) We have to wait for teaching moments and for the capitalist mentality to be ingrained naturally into the zeitgeist. Just as the fall of communism in 1990 showed everyone that central planning doesn’t work and we need “capitalism,” I suspect that over time as the human race continues to improve, as technology improves, as we give up atavistic ideas like religion (which will take a while; we are still in a primitive era, despite our rocket ships), as the division of labor expands, as we become richer, as crime declines, as people become more powerful by technology and the state recedes into the background, the libertarian ethos will gradually take hold of mankind. It will be like The Golden Age of John C. Wright’s great sci-fi trilogy.

But how long it will take to get there, is anybody’s guess. As I said, bitcoin may get us there quicker. But I think there is little we can to do get there quicker. This frustrates the activist since they want to do something. I view my role in liberty as one of personal growth and understanding and a mission of helping to move theory forward—for its own sake. In the meantime I think people should just keep an open eye out for the true nature of society and the state now, and take whatever precautions they need to survive and even prosper in the face of atavism-socialism.

I’m suggesting we simply focus on the indispensable parts, such as explaining the principle and our theory of property, and not worry about exactly how the law is made or enforced. That a reasonable interpretation is fairly enforced is all I care about. I think if we all simply focused on selling the idea of reasoning from the principle, we’d be further along.

I mean these are final as general aspirations but I think you are assuming a lot, like we need to “focus” on “selling the idea” of whatever. Why? Who are we selling it to? People who don’t want to buy our product? I am not trying to be too negative. I think we should squarely face these issues and have answers for them instead of steamrolling over them with rah rah salesmanship and Dale Carnegie positivity bluster. The rah rah only works for so long and on so many people.

I understand your position. I can’t say you’re wrong. Ultimately, neither of us knows what moves the needle enough to improve our lives and the lives of others on Earth.

But this “moves the needle” idea takes for granted the activist mentality—that “moving the needle” is the only standard, is our only goal; the only reason to be libertarian. Not everyone buys into this. I don’t measure the validity or soundless of ideas by how “persuasive” they are or how likely they are to “move the needle,” for example.

However, we do know we don’t need to convince everyone.

To do what? I agree, that we don’t need 100% libertarian agreement to have a free society. Maybe 50%. Maybe 30%. Who knows. Sure. But the point is it‘s like 1% now at best, and the idea that we can use activism and tactics and strategy and “education” to “move” that number from 1% to the magic X% threshold, is …. well, it‘s something. It‘s something that activists apparently implicitly believe. And if you question it, they get defensive and upset.

Most don’t matter to this issue. We know we need more than we have now. We also don’t know what level of understanding “they” need to have to join us in a way that matters to advance the cause of liberty.

I’m certainly not suggesting handing out ISIL, or any other pamphlets, at Thanksgiving.

The “handing out pamphlets at Thanksgiving” is not literal, it’s analogy to libertarian activism. It‘s an analogy to what we libertarians think we need to do as activists—run around trying to “explain” things to people, to “get them to see.” I think it is in fact analogous to what you want to do. You want to spread the message to people who are not even interested. I mean when Jehovah’s Witnesses or Mormons come to my door I slam it in their face. I’m just not interested. My hobby and passion and interest is in liberty; others are interested in fly-fishing or indie music or anime or quilting—their hobbies are not ours.

I do think having a global movement that clearly explains what’s most important to accept to advance our cause for those who actually are interested is important.

Why? I mean I am not challenging you. I am part of it myself. I have been since 1981. But i think it‘s important to honestly articulate why we think it‘s “important” to “have a global movement.” Why is it important?

I don’t think our crowd has yet to make its best case for our philosophy.

I disagree with you on the latter. I think a very good case has in fact been made–for those interested in this topic. I hate vicim-blaming. It’s not our fault that we don’t have liberty. I think you are lapsing into the activist mentality of judging ideas not by their soundness but by their persuasiveness.

I’m more optimistic than you.

I’m not so sure. You seem to think liberty will or can only come about if we build some movement to proselytize people. I think it will come about naturally, and I think that in the meantime we can enjoy the liberty we have and we can find ways to survive and prosper in the quasi-free system. I’m very optimistic about the long-run prospect for liberty and I’m optimistic about my own life in a mixed system.

I believe our philosophy would appeal to many more people if they understood it.

Sure, but they have no interest in understanding it because they are not like us. They might say “if you only watched anime you would see how great it is!”

I also think this is a great time to present it to them.

Why? I don’t think the nature of the human race or society is any different now than in the past. They might be proto- or quasi-libertarian in that most of then generally believe in peace etc., but… they are not interested in ideas or truth or consistency as much as we are.

I also think we will eventually evolve there if we can avoid realizing any of the serious existential threats that currently exist or are coming soon.

Sure, me too. I think the human race, if it doesn’t destroy itself, will achieve liberty. Sure. So I’m optimistic too. I’m just realistic and not impatient.

I simply want to hasten our evolution.

What makes you think this is possible? This is the real issue for all our meandering discussion. What makes you think that “promoting a message”, even if you have found finally the simplest, perfect, encapsulation of our perspective, can “hasten our evolution”?

The choice is simple: to do something or not.

I agree with this. But I look at it like Nock did the Remnant. Or—if the ship is going down, I choose to die on the side of the righteous. But I prefer not to do rah rah stuff and have illusions. Here’s a summary of why I’m a libertarian — Why I’m a Libertarian–or, Why Libertarianism is Beautiful.

I opt to do something, but I concede there is no “right” answer.

All of us have “opted to do something”. I am part of the general liberty movement despite not expecting intellectual activism to transform society right away. I fight because it‘s the right thing to do. I fight because I enjoy it. I like talking to people who are like-minded. I like opening the eyes of those few who are looking for enlightenment. I like understanding more and developing theory. I like helping preserve and foster the liberal spirit so that it‘s there when and if humanity finally grows up and wants and needs it. I think we are a primitive species. Very atavistic. We are still religious and tribal for God’s sake—racist, puritanical, sex hangups, stupid religious stuff; we are just smart apes. It might take 100,000 or 5M years before we finally grow up.

See, that’s optimism, for me. But damn I sound like a downer, even to me. 🙂

I might sound pessimistic but that means I won’t give up. Since I don’t have unrealistic expectations. I can’t count the number of people I’ve known and seen who are so impatient for change that they just give up on liberty or start to compromise and sellout to try to get something done. ⁶ If you focus on immediate results, and are likely to be disappointed, you might give up your principles or compromise. I won’t since I have such low and realistic expectations.