INTRODUCTION

Philosophers of freedom can be seen as mountaineers. The level of logical coherence in their defense of non-arbitrary coercive rules can be seen as the altitude they reach. In hindsight, the principle of non-aggression can be seen as the peak of the highest mountain.

In the past, several mountaineers have approached the summit ¹ , but the first to conquer it was Murray Rothbard. The path he chose to reach it, however, was traced on the slippery rock of ‘human nature’. As has often been observed (Antiseri, Giorello 2008, 90; Hoppe 1988, 61), this concept is problematic: it is in fact partly influenced by cultural factors, to the point of being arbitrary. To reach the summit along this path, Rothbard, for example, had to assume that, outside the field of economic theory, value can be objective, not just subjective; and specifically that, in the field of ethics, it is objective (Rothbard 1998, 11-12).

After Rothbard, his disciple Hans-Hermann Hoppe (1988; see also Kinsella 2011) reached the same summit of the highest mountain (more precisely, a very close summit ² ). However, he carved his way on the solid rock of a priori-logical reasoning, without ever touching the slippery rock of ‘human nature’. Not only does the path traced by Hoppe reach the same summit, but it is brilliant, enriching and beautiful. Rothbard (1988) immediately recognized the superior quality of the rock on which the new path had been carved.

The path traced by Hoppe begins with the principle of universalization as a necessary condition for demonstrating that a rule is logically justifiable. If a rule is not universalizable—that is, if it violates the logical and binary principle of equality before the law—then by definition it is arbitrary (“this is right because I say so”) and therefore unjustifiable.

Hoppe believes that universalizability is only a necessary condition for demonstrating the justifiability of a norm, not a sufficient one. Consequently, after a few attempts, he abandons the path of the principle of universalization, which he believes falls short, to forge a different path: that of argumentation ethics . Again, we are fortunate that Hoppe makes this choice. The new path he has charted is extremely scenic and leads to the summit: climbing exclusively on the solid rock of logical-a priori reasoning, Hoppe demonstrates that the principle of non-aggression (which passes the universalization test) is the only norm for which one can argue without contradicting oneself.

However, the claim that universalizability is merely a necessary condition for demonstrating the justifiability of a norm is incorrect: it is also a sufficient condition. In other words, the path of the principle of universalization also leads to the highest peak: the principle of non-aggression as the only possible non-arbitrary, and therefore justifiable, coercive rule. Furthermore, the path of the principle of universalization is probably the quickest and shortest route to that peak, even if it is certainly less panoramic and enriching than argumentation ethics . Furthermore, like the latter, it is traced exclusively on the solid rock of logical-aprioristic reasoning, without ever referring to “human nature.”

In what follows, I will divide my reasoning into three parts.

In the first part, I will briefly clarify the concept of ‘coercive rule’ as it will be used in this article, and some of its implications.

In the second part, I will explain why Hoppe’s argument that the universalization principle is only a necessary and not a sufficient condition for the non-arbitrariness of a norm is flawed.

In the third part, I will argue that universalizability is not only a necessary but also a sufficient condition for the logical justifiability of a coercive rule; and that the only coercive rule that satisfies this criterion is the non-aggression principle.

Finally, I will make some brief concluding comments.

1. COERCIVE RULES

By coercive rule , I will refer here to a rule whose violation justifies the use of physical coercion: not in the sense that physical coercion is “just” in this case, but in the sense that, within a particular legal context, violating this rule legally permits the use of physical coercion. Whether the coercion permitted by that rule is just or not is an entirely different question that depends on the logical coherence of the underlying theory of justice.

A coercive rule can be positive (“Alice must do X”) or negative (“Alice must not do Y”): logically, there is no third way possible.

It is important to emphasize that the question of whether a rule is fair or not, and the criteria it must satisfy to be fair, arises only for coercive rules. If a rule is not coercive, then a logical test of fairness makes no sense in relation to ^it .

Finally, coercive rules are difficult to avoid: even the rule “there shall be no coercive rule” is itself (if it is enforceable, in the sense that its violation allows legal recourse to physical coercion) a coercive rule. That said, whether the use of force in defense of coercive rules can be avoided, under what conditions, and within what limits, is a separate question that will not be discussed here.

2. HOPPE’S ERROR ON UNIVERSALIZABILITY

In order to demonstrate that the universalization test is not a sufficient condition for a norm to be justifiable, Hoppe uses some examples of rules that he claims pass this test and which are nevertheless arbitrary and therefore unjustifiable.

The first two examples are the following two rules: “’everyone must get drunk on Sunday or else they will be fined’ [and] ‘anyone who drinks alcohol will be punished ‘ ”: These two opposing rules “are both rules that do not allow discrimination between different groups of people and therefore both satisfy the condition of universalizability” (Hoppe 1988, 64). However, this statement is wrong.

The first of the two rules mentioned by Hoppe is a positive coercive rule. At first glance, it seems to pass the universalization test. However, upon closer inspection, it is clear that it fails the test. It presupposes that someone has the right to perform an action that others do not have the right to do: specifically, being the first to violate someone else’s property (in this case, by imposing a fine ⁾ . Indeed, as we will see below, this is the specific reason why, in general, all positive coercive rules necessarily fail the universalization test.

It’s worth emphasizing that we’re not yet addressing the question of whether the initial violation of someone’s private property is just or unjust (we haven’t yet defined what we mean by “justice”). We’re simply noting the objective fact that this particular rule logically implies that someone has the legal right to be the first to violate someone else’s property, and that others do not have this legal right; and thus, in this sense, the universalization principle is violated in this case.

The second is a negative coercive rule . Again, the use of the term “whoever” makes it seem like it passes the universalization test. However, this rule fails the test for the same reason the previous prerule did. It presupposes that someone has the legal right to perform a specific action that others do not have the right to do: again, being the first to violate someone else’s property (in this case, imposing a punishment).

The reason why both of these rules fail the universalization test is provided by Hoppe himself (which is why it is surprising that, in the specific case of the two rules mentioned above, he reaches a different conclusion): “All theories alternative to libertarianism put into practice, and most non-libertarian ethical theories, would fail even the first formal test of universalization, and would be shown to be invalid for this very fact! … These rules would be unacceptable because they would imply that one group be awarded legal privileges that would correspond to legal discrimination against another group ” (Hoppe 1988, 64). The organization that awards itself the legal right to award legal privileges to others is a group like any other. The fact that this group consists of a single individual is irrelevant to the analysis.

In order to reinforce the argument that the universalization test is not a sufficient condition for a rule to be justifiable, Hoppe (1988, 64) provides a third example: “everyone has the right to attack everyone else [a rule which, incidentally, would formally pass the universalization test!]”. Unlike the two previous rules, this one does , in fact, pass the universalization test. However, it is not a coercive rule . In particular, it is not a positive coercive rule : in that case, in fact, it would have been “everyone must attack other people”. Nor is it a negative coercive rule : in fact, a negative coercive rule establishes what a person (or anyone) must not do , not what he or she “has the right to do”.

In a situation where everything is permitted except what is explicitly prohibited by coercive rules, given a negative coercive rule, what Bob “has the right to do” is undefined and can only be deduced by subtraction. For example, consider the coercive rule prohibiting anyone from evading taxes. This rule implies that everyone “has the right to” read books (here I’m assuming there are no other coercive rules prohibiting this specific activity). While, on the one hand, the rule prohibiting Alice from evading taxes is a coercive rule, the fact that she “has the right to” read books, or to do many other things, is not a coercive rule: it is merely an implication, or rather a consequence, of the coercive rule above, or, perhaps more precisely, of the fact that existing coercive rules do not specifically prohibit this action.

The essence remains the same in a situation where everything is prohibited except what is explicitly permitted. In this situation, in fact, the rule “everyone has the right to attack anyone else,” like any other rule specifying what is permitted, is not a coercive rule. A coercive rule is one that, beyond these exceptions, prohibits everything.

Consequently, the rule “everyone has the right to attack anyone else ” is not a coercive rule. However, as I mentioned above, if a rule is not coercive, a logical test of justice is meaningless in relation to it.

Hoppe’s claim that universalizability is only a necessary, but not a sufficient, condition for the justifiability of a norm thus remains unproven.

3. THE UNIVERSALIZATION TEST IS A SUFFICIENT CONDITION

On the other hand, it can easily be shown: (a) that the universalization test is a sufficient condition for a coercive rule to be non-arbitrary, and hence justifiable, and (b) that the non-aggression principle is the only coercive rule that successfully passes this test, and hence the only logically justifiable rule.

As argued above, in order to demonstrate this we need to apply the universalization test to coercive rules only .

As we’ve already seen, all positive coercive rules fail the universalization test. Indeed, they presuppose that someone has the right to perform a specific action that others do not have the right to do: being the first to violate someone else’s property. For example, the positive coercive rule “everyone must serve in the military” fails the universalization test because it presupposes that someone (e.g., the state) has the right to be the first to violate someone else’s property (for example, by imposing a fine, imprisonment, or death penalty, etc., if someone refuses to serve in the military), while others do not have the right to do so.

We have also seen that negative coercive rules can fail the universalization test for exactly the same reason. For example, the negative coercive rule “it is forbidden for everyone to read books” again presupposes that someone (e.g., the state), unlike anyone else, has the right to be the first to violate the property of others by applying a sanction.

However, there is one specific (and at the same time general) case , and only one, in which a negative coercive rule passes the universalization test. This specific case is one in which the prohibited action is precisely the one that logically triggers the violation of the universalization principle in all other cases: being the first to infringe on someone else’s property. Unlike the previous negative coercive rule (“it is forbidden for everyone to read books”), the rule “it is forbidden for everyone to be the first to infringe on someone else’s property” does not presuppose that someone has the right to do something that others do not have the right to do.

For example, suppose that Bob is the first to violate Alice’s property by stealing her book. On the basis of the negative coercive rule “it is forbidden for everyone to be the first to violate the property of others”, Bob could be sanctioned and therefore have to suffer a violation of his property (for example in the form of a fine) by, for example, Alice, or by someone (e.g. a company) to whom Alice has voluntarily delegated the defense of her property rights (de Molinari [1849] 2009; Rothbard 1978).

Now, since this violation of Bob’s property would not be initial but only in response to Bob’s initial violation of Alice’s property, then it would not constitute a violation of the negative coercive rule “it is forbidden for everyone to be the first to violate the property of others.”

If we call the initial violation of someone’s property (e.g. through violence, the credible threat thereof, and through other means ⁵ ) aggression , then we can call the above negative coercive rule the non-aggression principle .

It is thus demonstrated that the universalization principle is sufficient to establish the non-arbitrariness of a coercive rule. Furthermore, since all other negative coercive rules and all positive coercive rules (without exception) fail the universalization test, it is demonstrated that the non-aggression principle is the only logically possible non-arbitrary (justifiable) coercive rule.

If we call legitimacy the respect for non-arbitrary coercive rules, and legality the respect for arbitrary coercive rules, then it follows that the only legitimate property is that which each person has over their own body; that of goods that previously belonged to no one and with which the person first mixed their own labor ( homesteading ); that resulting from voluntary exchanges and voluntary donations; that resulting from compensation following proven violations of the principle of non-aggression. Any other form of property, however legal, is necessarily illegitimate.

4. CONCLUSION

Hoppe’s argumentation ethics is a solid and rigorous path to the summit of the non-aggression principle as the only demonstrably justifiable coercive rule. His assumption, however, that the path of universalizability does not also lead to the summit is mistaken. In other words, his assumption that passing the universalization test is only a necessary and formal condition for a rule to be non-arbitrary (and therefore justifiable), but not also a sufficient and substantive condition, is incorrect. In fact, it is also a sufficient condition, and the non-aggression principle is the only coercive rule that satisfies this condition. The path of universalizability also reaches the summit. This path is carved on the same solid rock as logical-a priori reasoning. It is a less scenic and less enriching path, but in return, much easier and much quicker.

Furthermore, its implications (which will not be discussed here) are significant not only on the theoretical level but also on the strategic and communication levels. Indeed, especially today, most enemies of freedom revere the principle of equality before the law, which is usually one of the first articles of their constitutions. They revere it because they are unaware of its logical implications. In particular, they do not know that it logically implies the principle of non-aggression as the only justifiable (because non-arbitrary) coercive rule and therefore the illegitimacy of the state.

 

NOTE

1 The Taoists in ancient China were “ the first libertarians [and] believed that the state should have virtually no influence on the economy and society” (Rothbard 1995, 23, my trans.). Lao Tzu (late sixth or early fifth century BC), in particular, “ developed the view that the individual with his happiness is the fundamental unit of society. If institutions impede the flourishing of the individual and his happiness, then those institutions should be curtailed or eliminated altogether ” ( Ibid .). Chuang Tzu (369–c. 286 BC), arguably the most gifted of Lao Tzu’s followers, was the first person to speak out in favor of individualist anarchism. Rothbard (1995, 24) describes him as “ the first anarchist in the history of human thought .” Fast forward to nineteenth-century America: here we find Lysander Spooner (1808–1887) and Benjamin Tucker (1854–1939). Both viewed the state as a criminal organization based on the legalization of aggression (Spooner 1870, 13–14; Tucker 1897, 13–14).

2 Although problematic, Rothbard’s approach aimed to demonstrate the existence of the non-aggression principle as the only justifiable moral rule. Hoppe’s approach, however, logically demonstrates that it is not logically possible to argue for a different moral rule without contradicting oneself. The object of the two demonstrations is not the same.

3 Positivists and consequentialists tend to believe that justice resides in the end -states rather than in the rules. Consequently, they apply a test of justice (necessarily arbitrary and non-logical) to the end-states rather than to the rules, which are simply tools for arriving at these end-states. Here, however, I am dealing with the justice of the rules, not that of the end-states. In other words, I am dealing with a non-arbitrary theory of justice, not an arbitrary one.

4 The fact that someone can impose fines (and more generally violate the property of others) and that others cannot impose them does not in itself imply a violation of the principle of equality before the law. In other words, the absence of a state does not necessarily imply the absence of government. For example, if Alice smokes in Bob’s movie theater, violating the rule imposed by Bob and accepted by her, according to which smoking is prohibited in the theater and smokers are subject to fines, the fact that Bob, unlike, for example, another customer, can impose a fine on her does not constitute a violation of the principle of equality before the law. Nothing prevents Alice from building and operating her own movie theater with different rules regarding smoking, which she will have the exclusive right to apply within her property rights, and which others will have the discretion to accept, from time to time, or not. Here, however, I am considering a different case: one in which a particular organization (e.g., the state) unilaterally assumes the right to violate a person’s property, for example by taxing or fining them, without the person having violated anyone’s property.

5 These may include, for example, fraud, breach of free contract, failure to provide reimbursement following proven negligence, and others.

BIBLIOGRAPHY

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Hoppe, Hans Hermann. 1988. “From the Economics of Laissez Faire to The Ethics of Libertarianism.” In Man, Economy and Liberty. Essays in Honor of Murray N. Rothbard , edited by Walter Block, and Lew H. Rockwell, 56–76. Auburn: Ludwig von Mises Institute.

Kinsella, Stephan. 2011. “Argumentation Ethics and Liberty: A Concise Guide.” Mises Daily Articles . May 27, 2011. https://mises.org/library/argumentation-ethics-and-liberty-concise-guide.

Rothbard, Murray N. 1978. For a New Liberty. The Libertarian Manifesto. New York: Collier Books.

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