[Update: see also:
- On the Non Liquet in Libertarian Theory and Armchair Theorizing
-
- On Pushing the Button–the problem with magic
- The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression (July 17, 2006)
- Stalking and Threats as Aggression
- Fraud, Restitution, and Retaliation: The Libertarian Approach
- Konrad Graf, “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Libertarian Papers 3, 19 (2011), Part III, “Practice: The Armchair and the Bench”
- See also discussion of the flagpole hypo in The Liberty Magazine Polls: 1988, 1999, and 2008: Flagpoles, Parental Obligations, Private Nukes
From the Mises Blog, July 27, 2006:
A correspondent recently wrote me with a few libertarian puzzles/conundra. An edited version is below:
When are threats of aggression punishable by law? Just how immediate, credible and serious must a threat be if it is to be considered a law violation under the libertarian legal code?
[Note: In The Ethics of Liberty, Rothbard said: “It is important to insist, however, that the threat of aggression be palpable, immediate, and direct; in short, that it be embodied in the initiation of an overt act. Any remote or indirect criterion—any ‘risk’ or ‘threat’—is simply an excuse for invasive action by the supposed ‘defender’ against the alleged ‘threat.'”]
Let us consider each of these three elements in turn: immediate, credible and serious.
1. Immediate
If I say I am going to kill you now, that is more immediate than if I say I am going to kill you in 1 or 10 years. Certainly, in the first case, I am legally entitled to plug you, if I can get a bead on you, before you shoot me. But what about the future threat. Here, I think I am also entitled to take violent action against you. (I think in one of his recent books Randy Barnett takes this position.) [Yes: see page 65 of my review of Barnett’s book, discussing his principle of “extended self-defense”]
Consider the fatwa issued against Salman Rushdie by Islamists, both in the UK where this author was located, and also from several Muslim countries. Should the British Authorities have arrested anyone making this fatwa threat? (Stipulate, arguendo, that the UK govt is legitimate.) Certainly, this was an immediate threat; on that ground alone such arrests would have been justified. Yet, this govt did no such thing.
2. Credible
How credible does the threat have to be, to warrant the use of aggression against the issuer? Suppose I say, “If X shows up in town, I’m gonna strangle him with my bare hands.” I happen to live in Podunk, Montana, and the chances of X showing up are just about nil. Would X, or the forces of law and order, be justified in punishing me for making such a threat. (By the way, what is the proper libertarian punishment for a threat that is not carried out?) Many such threats have been uttered against the President of the U.S. throughout the last few decades, and perhaps even centuries. The govt police take a very negative attitude toward these threats. It is against the law to make such threats (what law?). Are they justified, on libertarian grounds, in adopting this position (again, we stipulate for argument’s sake that the US govt is a legitimate one, and so are those – the FBI – who attempt to uncover such threats and punish those responsible for them.)
3. Serious
When my children were in the orchestra, the conductor wore a t shirt saying, “tune your instrument correctly, or die.” Or if a professor giving an exam writes on the blackboard, “use a fake name or I’ll kill you.” (assume the professor likes to mark exams anonymously.)
These are easy cases. It is patently obvious in both cases that no real threat has been made. Anyone using physical force against the conductor or the professor in these cases wouuld be entirely unjustified. These are jokes.
But then, there are jokes and there are jokes. If A waves a toy pistol at B, a watergun, for example, and B shoots A with a real gun, libertarian law is likely in the extreme to side with B; to hold him innocent of murder. To consider his act one of self defense. There are exceptions here of course. If this is part of a play, or a movie, and A and B are actors. The script calls for A to aim a gun at B, all parties know that A’s “gun” is a fake, and, yet, B kills A. This is downright murder.
Similarly, at a track meet, were someone to kill the man firing the starter’s pistol this would be murder, no matter how realistic this weapon looks. (But suppose someone from Mars did this, in the honest but mistaken belief that the starter was aiming at someone in the stands, and the Martian was just trying to save that innocent person’s life.)
Is this entire train of thought just another example that there are grey areas in the law, continuum problems, which have no real solution?
My reply: See my recent post, The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression. In that post, I tried to briefly summarize my approach to:
- Why fraud is aggressoin
- Why threats are aggression
- Why breach of contract is agggression
I did this because most libertarians just sort of assume these are all types of aggression without knowing exactly why.
Now, re threats, and indeed all these matters, I am leaning toward a view something along these lines. In any real-world attempt to have a libertarian system, to have justice, there will be real, fallible people trying to adjudicate disputes. Juries, judges, whatever. There is a necessarily real-world, and imprecise, and compromising, aspect to justice, of necessecity. I think such decent, libertarian citizens/jurors would attempt to be guided both by more abstract principles of ethics and justice (such as those developed by theorists), and by local custom and established precedents and applications of the more general principles to more concrete situations; and they would also, of course, apply their own intuitive sense of justice and take into account as many contextual factors and nuances as possible, to try to make the best decision.
Given this, I am increasingly suspicious of the ability, or of at least the usefulness, of answering very particular concrete situations solely by armchair reasoning. First, the number of possible questions you can answer is infinite.
Second, even if you answer one, any real-world situation might have a more rich set of relevant facts that means your principle might not apply.
Third, you can never know ahead of time what body of “established” principles will have been built up and relied upon. For example, it seems to me that as a general matter, in any society there is going to be some understanding of tacit or implicit consent–e.g., today, it is not presumed to be trespass for you to knock on my door to ask me an innocuous favor or question. But how can we say ahead of time what customs in this regard will be in effect in any given society, any more than we can say ahead of time how language will develop or various actions will have various commmunicatory aspects (that is, you can imagine a silent sale: a guy buys a cup of cofffee and hands over a dollar for it, with no words being spoken; becuase of social context, the interaction and actions of the parties convey meaning, just as if they spoke in words; etc.).
I addressed some of this in a previous article, Knowledge, Calculation, Conflict, and Law, reviewing a book by Randy Barnett:
Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.
Yet, Barnett does not provide a rigorous argument showing where are the exactlimits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”25 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.
Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.
Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights (Hoppe [A Theory of Socialism and Capitalism] 1989b, p. 131; Rothbard [The Ethics of Liberty] 1998; Kinsella [A Libertarian Theory of Punishment and Rights] 1997, pp. 607–45). Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.
Barnett thus makes a convincing case that, in a decentralized legal system such as the English common law (or the early Roman law, the Law Merchant, and even modern arbitral systems)—especially one in which judges or arbitrators attempt to apply fundamental notions of justice to concrete situations—it is reasonable to expect a body of concrete legal concepts and precepts to develop, which are more or less compatible with fundamental notions of justice.27
26 This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises ([Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], 1981, pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66).
(See also my Punishment and Proportionality article, at note 20 and accompanying text:
“The conduct of individuals can be divided into two types: (1) coercive or aggressive (i.e., actions that are initiations of force) and (2) non-coercive or nonaggressive. This division is purely descriptive, and does not presume that aggression is invalid, immoral or unjustifiable; it only assumes that (at least some) human action can be objectively classified either as aggressive or nonaggressive.20
20 Other divisions could of course be proposed as well, but they do not result in interesting or useful results. For example, one could divide human conduct into jogging and not jogging, but to what end? Although such a division would be valid, it would produce uniteresting results, unlike the aggressive/nonagressive division, which produces relevant results for a theory of punishment, which of necessity concerns the use of force. See [Mises,[Ultimate Foundations of Economic Science], 1962, p. 41; [Epistemological Problems of Economics], pp. 14–16, 30–31, 87–88; [Human Action], 1966, pp. 65–66)] (explaining that experience can be referred to to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws).)
So, given this, it seems ot me that if we theorists try to answer questions from the armchair, then we are on more solid ground, the more abstract and general are our principles; but the more concrete or detailed we try to make the rules or fact-situations we are judging, the more and more we are making assumptions that might not apply in the real libertarian world. Should we stick to the abstract and general; well I don’t know; I tend to think at the least, when we veer from the more abstract, we ought to have implicit caveats in our determinations–sort of “ceteris paribuses” or other qualifiers. As to threat–in view of what I said above, I am leery of making a hard and fast prediction as to what standards will apply. Just as horse-stealing in the old west might be punishable by execution (since taking a horse might doom someone to die), but nowadays it’s just a more minor property crime, so in some societies I could see the libertarian standards for justice being applied more harshly, with less concern for error; or, less harshly, and with more concern for the possibility of mistake. Etc. With these kidns of qualifiers I can tell you my own intuitions and/or guesses about how I think a typyical reasonable libertarian society would (should?) probably handle these things.
I am not 100% sure that threats have to be “immediate, credible and serious” to count as actionable. Or, how this standard is applied, if it is. I see room for variation in both the standard itself that determines threat; and in how the standard is applied. That said, I see the reason behind these three elements.
I tend to think that a future threat, IF it is very credible, sure, could be acted against. Still, it seems to me that it’s easier to justify, the more immediate it is. I think the threat has to be real, i.e. credible. and remember that in any society resources are scarce, including those of justice and policing; surely such remote or incredible threats would be too low on the radar screen to worry about. As for punishment: I am not sure about this. I tend to think we look at a threat as a sort of “attempted crime”; and punish it based on the crime attempted discounted by the probabiliyt of success. I have a similar view as to negligence. Agreed also, re jokes. But imagine a case where two actors are joking or playing and aiming pretend guns; and some third person stumbles upon the scene and mistakenly thinks he’s in the middle of a gunfight and to defend himself plugs one of the actors. In this case, had the third party known it was a joke he would not have been justified in killing them. But if he does it on accident, is he off the hook? Maybe, if you say the actors caused the third person’s state of confusion etc.
I tend to think these are pretty much continuum problems that are problems of application of abstract or general principles of justice to concrete, fact-bound situations, and therefore difficlt to answer from the armchair once and for all; there may not even be an “objective” right decision in many cases. For this reason I tend to think that just as neighbors build fences on borders, and would not build a house right on the borderbecause of the gray area of ownership at the border; so people would tend to act, and to develop social guides to conduct (rules), that push people away from the gray areas and into the clearer areas. This is all perfectly reasonable. Then, someone who took risks in the gray areas has no one to blame but himself; much like it’s unwise for a woman to walk naked in central park at midnight: she is not to blame, but the inherent riskiness of this behavior tends to dissuade people from doing it.
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Published: August 22, 2006 11:48 AM
Published: August 22, 2006 12:18 PM
Published: August 22, 2006 12:40 PM
Does it even need to be an argument? A slave, one day, comes up to Mr Hoppe, and says, “Mr. Hoppe, my Master has instructed me to tell you that he owns me.”
Sure, he is saying that somebody else owns him.
Well, I had in mind, when thinking of the scenario, some period in ancient Roman history, so perhaps, yeah, we could say legally. I’m not sure of the relevance.
Consents is a tricky question, since this might depend on whether you are using a moralised notion of consent or not. However, suppose that this wasn’t the result of some voluntary slave contract a la Nozick, but instead was imposed against the slave’s will. What difference does that make?
Whether he agrees or not may well be irrelevent to the question of whether or not he is a slave.
He is saying that he does not own himself. If he is a slave, a person owned by another person, this statement is true.
Published: August 22, 2006 6:06 PM
“Sure, he is saying that somebody else owns him.�?
What do you think this would prove? Hoppe is not claiming the slave is not considered to be a slave by his owner, by others or by the slave himself. So the slave’s confirming this fact verbally is not in question nor is it relevant. The question is: is slavery of non-aggressors justifiable? This slave’s statement of his condition of slavery does nothing to answer this question.
“…suppose that this wasn’t the result of some voluntary slave contract a la Nozick, but instead was imposed against the slave’s will. What difference does that make?�?
Slavery imposed against the non-aggressing slave’s will is unjustified, whereas slavery imposed against a criminal is or may be justified.
“Whether he agrees or not may well be irrelevent to the question of whether or not he is a slave.�?
And whether or not he is a slave is definitely irrelevant to the question of whether slavery can be justified.
“He is saying that he does not own himself. If he is a slave, a person owned by another person, this statement is true.�?
The statement may be true in the sense that he is treated as a slave and viewed as a slave by others and even himself. This is however, irrelevant to whether his being a slave is justified.
I’d elaborate on why a slave saying he is a slave is irrelevant to a justification of slavery, but van Dun does this pretty well in his article. Do a search on “slave” in the text and read the surrounding paragraphs.
Published: August 22, 2006 7:40 PM
RG: Does it even need to be an argument? A slave, one day, comes up to Mr Hoppe, and says, “Mr. Hoppe, my Master has instructed me to tell you that he owns me.”
Hoppe’s argument is that argumentation presupposes the libertarian ethic, and that therefore if you engage in argument and propose something non-libertarian then you are contradicting yourself.
So the contradiction plays out only when there is (a) genuine argumentation (of the type that presupposes libertarian principles); and (b) someone who proposes a non-libertarian ethics.
In your case, it is not clear whether this is argumentation. Apparently the Master ordered the slave to say those words, and if he is being ordered, presumably he is not free to really change his mind and accept Hoppe’s counterarguments. HOw is it an argument?
If we somehow assume the Master gave the slave permission to be totally free to argue and to accept whatever conclusion he believes right, solely on the force of the aguments made, then I suppose it might be an argument. So. Suppose this is so, and the slave, call him “num-nuts,” says, “Master owns me.” Is this proposing a non-libertarian ethic?
Why would it be? It might be a (legal) fact that in this community Master owns num-nuts. Num-nuts is then just stating the truth. How is this proposing a non-libertarian ethic?
Now, let me go ahead and answer teh rest of the hypothetical you should have posed, if you had really understood argumentation ethics.
Suppose Num-nuts says, “I am owned by Master, and this is right and good; and it’s okay for some people to own others, even if they didn’t do anything wrong to the owner.” (See why I called him Num-nuts? I think ahead.)
In this case, it is obvious that Num-nuts’ status as a slave is irrelevant to whether there is a contradiction or not. If it is a genuine argumment, it merely means his master gave him permission to argue. And if he is a slave and says slavery is okay, he is actually consenting to his enslavement, so it’s not really enslavement! Now, you might say, well, he is not really consenting, he is forced to agree to this proposition–hey, if that’s the case, it’s not really argumentation and we are back to square one. For your hypo to work you have to assume the slave is free to say what he really believes and is not coerced. Which means, if he defends slavery, he’s not a slave. Which means, Num-nuts pro-slavery comments in the argument are no different than if the Master or some other free person utters them.
So all we have is a person S engaging in argument, saying “Slavery is justifiable.” His status as slave is irrelevant to whether there is a contradiction or not (in fact, as noted above, he really can’t say he is okay with slavery and be a slave; he is just a willing masochist). Moreover, even if he were somehow still a slave, it still does not affect whether his statement is a contradiction or not. The only question is whether the libertarian ethic is presupposed by the activity or argumentation or not. That is the only question really. And to answer this, it is utterly irrelevant whether the parties to a genuine argument are “really” slaves, or not. What matters is whether argumentation presupposes the libertarian ethic as justified.
NSK: Second, clarify what exactly the slave is saying. Is he saying he does not actually own himself;
RG: Sure, he is saying that somebody else owns him.
Since you apparently do not understand the nuances here, or are unwilling to engage them, I”ll assume here you mean the slave is merely stating a legal fact: that under the legal system, his Master has a legal right to administer force to the slave to induce him to do what the Master wants. IN this case, there is no contradiction at all because the slave is not saying he supports slavery.
RG: Well, I had in mind, when thinking of the scenario, some period in ancient Roman history, so perhaps, yeah, we could say legally. I’m not sure of the relevance.
Right, that’s become clear.
RG: Consents is a tricky question, since this might depend on whether you are using a moralised notion of consent or not. However, suppose that this wasn’t the result of some voluntary slave contract a la Nozick, but instead was imposed against the slave’s will. What difference does that make?
It makes no difference at all. What I was getting at was the nature of Num-nuts’ statement: was he merely recognizing a legal fact (he is owned), or was he endorsing it? HE apparently is only doing the former, which means he is not engaging in contradiction.
NSK: or that he agrees that he “should” be dominated by the master?
RG: Whether he agrees or not may well be irrelevent to the question of whether or not he is a slave.
Well, if he agrees, he is arguably consenting so it not a slave, is he? But even if you are right: it does not matter whther it is relevant to the question of whether he is a slave, because as I explained above, it does not matter whether he is a slave or not, for purposes of determining whether his statements are a dialogical contrdiction or not. If he engages in genuine argument, somehow (whether he is a slave or not), then if he asserts a non-libertarian ethic, he is engaged in a contradiction. Why? Because the argument preuspposes the libertarian ethic as justifiable.
If you disagree then you only disagree with the latter statement, and that is what you should focus on.
RG: He is saying that he does not own himself. If he is a slave, a person owned by another person, this statement is true.
Yes. And irrelevant.
Published: August 22, 2006 8:41 PM
Published: August 24, 2006 9:41 AM
So what? The fact that there are uncivilized criminals is no disproof of a normative claim. Hoppe’s claim is only that one cannot actually ever justify a non-libertarian norm; and that only a libertarian norm is justified. Of course only those who care about justification–those who engage in genuine argumentation–even care about this. But so what? This comment of yours actually further bolster’s Hoppe’s case. You are basically saying that the only way to avoid the contradiction is to not genuinely argue. That in effect means that if and to the extent you are really engaged in argument, you are demonstrating your acceptance of the underlying libertarian norms and cannot contradict yourself by arguing against them.
If and to the extent they are engaged in genuine argumentation they have to be open to hearing the other side’s reasons and potentially changing their mind based on the force of the others’ ideas alone. In any event, these people cannot atually engage in genuine argument and deny the libertarian ethic, since a genuine argument is required to justify anything, and also presupposes the libertarian ethic.
Let’s suppose a master M and slave S can have a genuine argument. If so this is only if and to the extent the Master in effect frees the slave so as to be free from the threat of coercion if he refuses to accept the Master’s propositions. The Master himself would have to recognize at least his own right to control his body, and to be able to homestead resources in order to have an argument, and to be able to survive in order to have one; and he would have to recognize the value of a conflict-free mode of interacting; and he would have to recognize the value of justifying propositions and being able to engage in the activity of justifying; and he would have to value the assignment of property rules that permit conflicts to be avoided. Given all this, Rothbardian and Austrian reasoning shows that his only choice is to accept the libertarian “first use” rule of property assignment. This is the only one that fulfills all the requirements above.
Sure; the master would, in asserting his right to own the slave, be contradicting his other necessarily held view that the libertarian ethic is justified. So he is contradicting himself.
Of cousre he wouldn’t, since slavery is unjustified and unjustifiable, and becuase (and *just* because) it contradicts the ethic presupposed in argumentation as such.
Sure. O, Happy day.
The question is not whether a slave can argue. The question is this: if and when there is a genuine argument, do the participants presuppose the libertarian ethic? This is really the only question. If they do, then anyone who proposes a non-libertarian ethic contradicts himself–whether he is the slave, master, or dog-catcher.
But the participants demonstrate their *preference* for argumentation *as an activity* and they demonstrate their *preference* for this *conflict-free mode of interacting*. They demonstrate their recognition of the undeniable fact that propositions can only be justified argumentatively, and that they *should be* justified argumentatively. They recognize the value of argumentation; and the factual (conflict-free, control-recognizing) aspects of argumentation); and thus recognize the value of people having control over their properties. They recognize, moreover, the value of rules that assign ownerhsip of title to scarce resources at least sufficient to permit them to have survived long enough to argue and to control enough resources to engage in the argument. This means that they cannot advocate a property rule that “no one is permitted to use property”, because if this were followed argumentation would not be possible. Yet if they cannot consistently advocate this, they also cannot advocate any collective ownership rule, because it woudl be the same thing. They also cannot advocate that there be NO rule; and they cannot advocate a PARTICULARISTIC rule since by arguing they accept univeralizability.
So what is left? Here we have it that no participant in genuine argument can without contradiction (a) deny the value of conflict-free interaction; (b) deny the value of rules that permit some use of scarce resources sufficient to avoid conflict sufficient to permit the participants to engage in argument and to survive long enough to have done this; (c) deny that it is good that some individuals are property owners so that the argument can proceed (even if both arguers are slaves, there has to be some independent, sovereign owner who permits the slaves to argue; if the slaves are prisoners being punished for a crime, then there is an argumentive distinction between master and slave; if not, then whatever basis underlies the presupposed ownership of the ultimate “master” consenting to the argument, must apply also to the slave(s)); (d) argue that there be no property rules; (e) argue that there be a collectivist property rule where everyone owns everyone else; (f) argue for a late-comer rule; (g) argue for particularistic rules.
Given all this, it is obvious that the ONLY rule that is compatible with these argumenative restrictions is the unvarnished, unlimited libertarain first-use appropriation rule. For only this one is compatible with the body-ownership rule presuspposed by the arguers. Only this one solves conflicts. Only this one is not particularistic, and universalizable. Only this one avoids the nihilism of advocating NO property rule.
Published: August 24, 2006 10:22 AM
I do think that slavery is unjustifiable, but that is a separate issue from the quality of the arguments put forth by the slave-owner and his philosopher-slave. The slave-owner could win an argument over the justness of slavery if his philosopher-slave provides weaker arguments than he does. You’re conflating the truth of the conclusions with the strength of the arguments and assuming, contrary to the stipulations given in my example, that the parties in the argument provide the best possible arguments for their positions.
You say: “The question is not whether a slave can argue.”
But this precisely is the question. If a slave can argue, genuinely argue, then genuine argumentation takes place. This question and the question you insist on are in fact related.
You say: “slavery is unjustified and unjustifiable, and becuase (and *just* because) it contradicts the ethic presupposed in argumentation as such.”
But I don’t see that you, or Hoppe, or Van Dun, have established this.
You say: “Let’s suppose a master M and slave S can have a genuine argument. If so this is only if and to the extent the Master in effect frees the slave so as to be free from the threat of coercion if he refuses to accept the Master’s propositions.”
In effect? It seems like you are talking about control here, not self-ownership. This is, I think, where you, Hoppe, and Van Dun go wrong. You conflate self-ownership with control. The slave may “in effect” be free (for the purpose of debating only) when his owner grants him the control necessary to engage in argumentation and promises that he will not be punished for speaking freely. But this does not establish that the slave must not be a slave, i.e., that he must have self-ownership, in order to engage in argumentation; it does not by itself establish that the slave must be set free in the sense of being released from his bondage in order for genuine argumentation to occur. In other words, this does not get you from the ethics of argumentation to libertarian self-ownership. Something else beyond the ethics of argumentation is needed to generalize the conditions necessary for genuine argumentation beyond argumentation to human activity in general. And something more is needed beyond that to establish that not merely control is needed but that self-ownership is true and people should therefore and on that basis be left in control of themselves.
Van Dun is correct on page 6 of his essay that I would performatively contradict myself if I claim that an argumentatively justified conclusion is justified only within the context of argumentation itself, but this is not what I am claiming. If you or I successfully argue that libertarian self-ownership is justified, its justification is not limited to the context of our argument. I am merely arguing that the argument that the ethics of argumentation by itself establishes the justification of libertarian self-ownership fails.
I’ll grant you that if in the course of argumentation the slave-owner finds himself unable to defeat the anti-slavery arguments of his philosopher-slave, then should he refuse to free his slave he would be engaging in a performative contradiction: namely, professing to engage in argumentation, which presupposes certain normative commitments, and then refusing to respect said commitments when he loses the argument. This performative contradiction stems not from the claim that argumentation presupposes libertarian self-ownership and that therefore he cannot simultaneously claim to own slaves and engage in argumentation without contradiction; rather, it stems from the fact, stipulated in my example here, that he has lost the argument – having failed to refute his slave’s anti-slavery argument – and then refuses to respect the commitment he made in engaging in argumentation to accept conclusions of the winning argument.
If one wants to restrict the meaning of “genuine” argumentation to something that requires self-ownership, one has to make implicit or explicit (historically mostly implicit as far as I can tell) assumptions that are not justified by argumentation ethics itself but rather form the justificational foundations of argumentation ethics and which themselves still need to be justified. Argumentation ethics cannot stand alone. To be effective, it must be situated within a broader and deeper philosophical and ethical theory.
Published: August 24, 2006 11:44 AM
Published: August 24, 2006 12:05 PM
And one just “doesn’t do” this, in an argument, right? It’s not … permitted? by the … rules of argumentation? 🙂
YOu can never justify that which is not justifiable.
Silly me, I would think an argument’s strength comes from its being correct.
Could someone also “win” the side of an argument contending that A is not A; or that 1 + 1 = 3?
Er, okay. How does that show the argument does not presuppose the libertarian ethic?
In any case, it is unrelated to whether a slave is part of a genuine argumet. The identity or legal status of the participants has nothing to do with anything. Whatever is presupposed is presupposed, by virtus of its being argumentation, not because of who the participants are.
Ownership is just the right to control.
Self-ownership is the right to control one’s body. If we are speaking of legal rights, then we are speaking of legal ownership. If we are speaking of libertarian (“natural”) rights, we are speaking of natural ownership. It’s just terminology.
If the legal system permits A to own B, even though B is innocent of any crime, then the legal owner of B is A. We libertarians woudl say this is unjust, *because* A is the “real” owner of his body–by “real” we mean, he is the one who has the (moral) right to control his body, even thoguh this right is not legally recognized.
Okay…
He must have the right to control his body to participate in the debate. THe master’s granting him freedom to debate means giving him the right to control his body.
THe point is that the master has to presuppose a variety of normative principles which *imply* that he cannot justify the proposition “I should own the slave”.
NOtice here, though, how strange and … bloodless an alienated your argument is (I think it suffers from what Van Dun criticizes as the mere “academic” way of viewing argumentation): you yourself as a libertairan have admitted you think slavery is wrong. For wahtever reason–you must have some basis for this view. and you necessarily think that it is better than any counterclaims. So the slave could just put forward your argument, whatever it is; and he would then win.
… So… are we done, then? Have you conceded, or not? I think you are confused because you accept something yet you don’t want to accept it at the same time.
HE faield to refute it because he is wrong. I don’t see this as some stupid game theory exercise, wehre everything is infinitely and forever debatable and uncertain. I don’t harbor the illusion that you can “win” an argument if you are wrong. What standard are you using? Some litigator-lawyer standard?
Genuine argumentation is conflict free, by its nature. It requires each participant have control of his body–and, vis-a-vis each other, the right to control. Surely you can see this. It also requires them to be alive, and to control something more than just their bodies–some external resources. This means the participants endorse also the rule that people should be permitted at least sometimes to use scarce resources and in a conflict-free way. This implies, as I argued in last post, that only the full-fledged libertarian homesteading norm is compatible with argumentation.
Interesting–you say this statement *in the context of an argumentation*. It’s like trying to deny the significance of the limb you are standing on.
Published: August 24, 2006 12:16 PM