Libertarian Answer Man: Intent in Action, Strict Liability

by Stephan Kinsella on September 16, 2025

Dear Stephan,

Sorry to bother you again; I know you are busy with the upcoming PFS event and likely have no time to be answering questions all the time, so feel free to backlog this for a later date or just refer me to any previously-written sources if you deem it necessary.

So, a lot of ancaps I’ve been debating have adopted a stance whereby the NAP only categorizes actions based on specific intention; the sought consequences of acting. Their view is basically that if you throw a rock over a wall without any intention to hit a person, but you do hit a person, then that is not an objective act of aggression.

However, my understanding of Rothbard’s, Block’s and Hoppe’s definitions of aggression is that the act itself does constitute an objective ethical violation of the NAP, ergo, it is aggression, in that sense. Why? Because someone’s rights were violated, and the NAP classically focuses on a person’s actions, not their subjective internal state. To cite both Murray and Hans:

it is some sort of technical necessity for any theory of property (not just the natural position described here) that the delimitation of the property rights of one person against those of another be formulated in physical, objective, intersubjectively ascertainable terms. Otherwise it would be impossible for an actor to determine ex ante if any particular action of his were an aggression or not, and so the social function of property norms (any property norms), i.e., to make a conflict—free interaction possible, could not be fulfilled simply for technical reasons.
A Theory of Socialism and Capitalism, p. 23.

Jones assaults and attacks Smith; Smith, in self-defense, shoots. The shot goes wild and accidentally hits Brown, an innocent bystander. Should Smith be liable? […] in libertarian and in strict liability theory, Smith has indeed aggressed against Brown, albeit unintentionally, and must pay for this tort.
Economic Controversies, p. 379

… the rule prohibiting violence against the persons or property of innocent men is absolute: it holds regardless of the subjective motives for the aggression. It is wrong and criminal to violate the property or person of another …
Egalitarianism as a Revolt Against Nature, p. 117

… everyone may do as he wishes provided he does not initiate an overt act of aggression against the person or property of anyone else. Anyone who initiates such aggression must be strictly liable for damages against the victim, even if the action is “reasonable” or accidental.
Economic Controversies, pp. 404–05

Based on their statements, I’d find it absurd if someone said “well, I didn’t mean to punch you when I began swinging my fists randomly into the air, so it is not a violation of the NAP.” States of mind cannot be judged a priori, otherwise, we’d not be able to ever categorize an action as aggression before it occurs because we’d have to consider every possible motive or every possible intended ends of an action.

But I think that the NAP cannot be invoked where there is a lack of general intention, as in, the action was not purposeful; I swung my hands because of a reflex, a spasm, or because someone was grabbing them and controlling them against my own will. The act of punching you was entirely beyond my rational control.

However, these people I was debating with insisted on the NAP involving both intention and epistemology; you must know that you are aggressing to violate the NAP, and you must intend to aggress, otherwise, you didn’t violate it. But I think they’re conflating the a priori ethical judgment of an action’s category, with the a posteriori legal judgment. In their view, if you push me, and I swing a fist at you, but you dodge, and I hit poor Walter instead, then I’m not guilty of punching Walter, you are guilty, and while this could hold true in a legal sense, I am pretty sure that ethically, the NAP doesn’t judge chains of action; it just judges individual actions. The act of me punching Walter is separate from the act of you pushing me, and the causal chain is only relevant for the ex post judgment of the action.

It feels to me like when they try to introduce epistemology and specific intent into ethics, then they turn it non-falsifiable, because one can just rationalize any action and it would remove its category, since it turns the NAP into a relativist concept, not a rationalist one. But this is incoherent, because the NAP, as the central axiom of Rothbard’s philosophy, is built on an Aristotelian-Thomist objectivism. Ergo, it cannot be reasoned or interpreted subjectively according to states of mind.

Another thing that they seem to insist on is the idea that law and ethics are the same, and that if law proves someone liable, then they did aggress, but this incoherent. Their view says, therefore, that if I murder Walter, and nobody ever finds out, then I did not aggress at all. Their view also says that if you murdered Walter, and managed to set me up by planting evidence, then I did aggress. Both situations are objectively false. If I killed Walter, I aggressed regardless of whether I am liable. Same if I didn’t kill him. When this is the case, one can only come to the conclusion that in practice, law and ethics are intersecting sets, not the same.

I believe that the truth of the matter is very simple, and I wouldn’t know if you agree: if your willful action invades someone’s person or property against their will, regardless of any motives or any specific intentions, you have aggressed. All subjective valuations are only relevant to judge ex post whether you are liable or not. I believe it’s irrelevant if one cannot subjectively know if they’re aggressing, because the category of their action is an objective fact independent of interpretation, just like the fact that we don’t know if life exists in other planets doesn’t negate the objective truth that it either exists or it doesn’t. What can (or can’t) be intersubjectively ascertained post hoc may differ from the objective truth, but this is because perfect knowledge isn’t possible.

You’ll have to excuse me for making this e-mail so long and peradventure repetitive. I just had a 6-hour-long debate, wrote basically 3 whole essays of answers, and I wanted to put forward these questions while they’re fresh in my mind.

Yours in liberty,
[]

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Kinsella (Sep. 16, 2025)

As you surmise I do not have time to reply in detail. Please consult the following and if you have more questions email back or we can discuss by zoom later this month.