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Libertarianism: Legal or Moral Theory?

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mikachusetts Posted: Tue, Jan 3 2012 5:09 PM

 

I was just reading a Block critique of Friedman, and one of his main claims is that Friedman is mistaking deontological libertarianism as a theory of morality instead of a theory of law.  Besides the fact that its incredibly confusing to call a legal theory "deontological" and treat it as wholly seperate from morality, and the fact that the seminal work of deontological libertarianism is called The ETHICS of Liberty, Block seems straight up wrong in his distinction.

The example he gives to separate law from morality is this:

Let us consider the libertarian case for becoming a Nazi concentration camp guard. Suppose that true-blue Nazis murder 100 innocent victims per week, and that this would occur no matter what our libertarian did. However, assume that it would be possible for our libertarian concentration camp guard to murder only 90 prisoners per week while bringing 10 of them to safety every seven days. Would it be moral for him to do this? I argue yes. He will have saved 520 innocents from certain death within the year, at great risk to his own life. Not only were his actions moral, they were heroic. Then, the Nazi regime ends, and our libertarian concentration camp guard is brought before the Nuremberg Court. Will he be found guilty of murder? Of course he will. He murdered 90x52 = 4680 Jews, blacks, Gypsies, gays, Catholics, etc., in the course of the year, and thus deserves to be punished to the full extent of the libertarian law.

What Block does here is really unfair.  He morally praises the man for sparing 520 lives while he legally condemns him for murdering 4680 - but those are separate things!  That's not distinguishing between law and morality, just applying them separately.  The only other way to read this (and its pretty disturbing) is that the murder of 4680 individuals was morally defensible because if someone else did the murdering, they would've killed more. 

Additionally, I think for conceptual reasons its hard to accept the claim that deontological libertarianism is only speaking of law.  Since Block is approaching law as a rationalist and not a positivist, it seems wierd that he would approach morality the other way around, so I think its safe to assume that the distinction being made between the two is not on the grounds of morality being reduced to relatvism while law remains objective.  In other words, I just can't see why someone would oppose a rationally ascertainable moral code but not a rationally ascertainable legal code.  (An explanation that would make such a position more reasonable would be holding some distinction between moral and ethical, in which case Block would be saying that libertarianism is legal and ethical, but not moral - which just means that Friedman's criticism is true, just with a different word.)

So then, it seems that the position is that while both law and morality are objective and determined by way of rational insight, they occupy different realms.  The problem I have with this, is that I have yet to see a libertarian oppose libertarian legal concepts on moral grounds.  How is it that The Law doesn't run aground of morality if it isn't rooted in Libertarian Morality first?  

Block's example fails to demonstrate a moral act which is illegal in the same aspect because no such act can exist in deontologicla libertarian theory.  Illegal acts are necessarily immoral because its absurd to believe that an objective rational law would bar you from behaving morally.  THIS is why the libertarianism of Rothbard, Block, et al. is a moral theory and not a legal one.  

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The law is man made while morality is not.

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Eric080 replied on Tue, Jan 3 2012 5:52 PM

Block is, I suppose, saying that someone becoming a Nazi guard in this instance is moral because, if the person didn't get involved, they wouldn't have saved any lives.  But, on the other hand, they are participating in murder, so there would have to be some sort of ramifications.  I don't know if this is the correct belief to hold or not.  Block also said elsewhere in a response to Jonah Goldberg that if you were to shove a person out of the way of an oncoming boulder and happened to break their arm, you did a moral act (assuming the person wanted to live), but you technically committed assault and thus must pay for the broken arm that you caused (you would be negligent).

 

Block's bigger point is that something that is a valid action under a libertarian legal theory is not necessarily moral.  Many consider it is immoral not to help a neighbor that needs help, but it is a valid action to refrain from doing so.  It would be immoral to use force to get the person to do a certain type of moral action.  This example he used is kind of weird.  I think Rothbard wrote about this in his "lifeboat" example where, one could argue that one would have a certain type of justification for pushing someone else off a plank of wood that would allow you to survive, but that you ought to face some type of penalty because you committed a crime.

 

I think the point is that libertarian theory is a moral theory of what the law ought to do, it is not a theory for personal morality nor is it to judge if this outcome has more moral utility than that outcome.

"And it may be said with strict accuracy, that the taste a man may show for absolute government bears an exact ratio to the contempt he may profess for his countrymen." - de Tocqueville
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I don't think you can easily separate a moral theory of what the law ought to do from a theory of personal morality though; not without reaching wierd conclusions.  I mean, it just doesn't make sense to say "the law ought to be such and such no matter what" and then say "there are cases where you ought to break the law."  The second sentence makes sense when referring to existing laws, but not when referring to a rationally constructed legal code which supposedly ought to hold true in all cases!

In other words, why would you advocate a legal code which you thought ought to be broken from time to time, instead of advocating a legal code which allowed for such behaviors in the first place?  

Or, why not just admit that deontological libertarianism is a moral theory which also seeks to establish its morality as law?

 

 

 

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The law is man made while morality is not.

Nice try :P

Well, unless you believe God made morality.

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Eric080 replied on Tue, Jan 3 2012 6:49 PM

Good points wink

 

I think I agree with you.  I was trying to clarify for myself what Block's point was.  This is his primary criticsm of Friedman's illustration:

 

Friedman  starts off by attributing to “many libertarians”  the view that “it is always wrong to initiate coercion.” I defy Friedman or anyone else to cite any reputable libertarian (qua libertarian) who ever published  anything of that sort.  One difficulty with the “always wrong” rendition of libertarianism is that it makes it out to be a branch of morality, and it is no such thing. It may well be moral to help old ladies across the street, and immoral to drink oneself into an alcoholic stupor, but none of this is at all relevant to libertarianism, properly understood. Libertarianism is a theory or a branch of law, not morality.

But as you say, for many libertarians, libertarianism is a legal theory, but they are arguing that a libertarian legal code will be a better / more moral state of affairs than it would be otherwise.  The whole point of developing and advocating a libertarian legal theory tends to be that the person advocating it believes it to be morally superior.  I think the bifurcation between "it is moral to help old ladies across the street" and "it is immoral to force others to help old ladies across the street" is something worth noting though.  I'm fine with keeping "legal morality" and "personal morality" distinct because the former deals with when force is deemed acceptable.  They may all fall under the branch of "morality" but it is just a classification of a different type of morality.

 

This is something Block wrote on the NAP and it has to do with that boulder example:  http://www.lewrockwell.com/orig/block1.html

"And it may be said with strict accuracy, that the taste a man may show for absolute government bears an exact ratio to the contempt he may profess for his countrymen." - de Tocqueville
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mikachusetts:
What Block does here is really unfair.  He morally praises the man for sparing 520 lives while he legally condemns him for murdering 4680 - but those are separate things!  That's not distinguishing between law and morality, just applying them separately.  The only other way to read this (and its pretty disturbing) is that the murder of 4680 individuals was morally defensible because if someone else did the murdering, they would've killed more.

I share your confusion about what Block wrote there. As a deontological libertarian*, my own take on it would be that, first of all, the Nazi concentration-camp guard in question was acting morally when he saved lives and immorally when he murderously ended lives. Please note that this is referring to the actions themselves. Second, I don't think moral and immoral actions can cancel each other out. That is, regardless of how many moral actions a person may make, I think he should be held accountable for his immoral actions. Maybe this is actually the point that Block is trying to make - but if so, then I agree with you that his language is muddled, at the very least.

mikachusetts:
Additionally, I think for conceptual reasons its hard to accept the claim that deontological libertarianism is only speaking of law.  Since Block is approaching law as a rationalist and not a positivist, it seems wierd that he would approach morality the other way around, so I think its safe to assume that the distinction being made between the two is not on the grounds of morality being reduced to relatvism while law remains objective.  In other words, I just can't see why someone would oppose a rationally ascertainable moral code but not a rationally ascertainable legal code.  (An explanation that would make such a position more reasonable would be holding some distinction between moral and ethical, in which case Block would be saying that libertarianism is legal and ethical, but not moral - which just means that Friedman's criticism is true, just with a different word.)

I completely agree with you here. I consider deontological libertarianism to concern morality first and foremost. Where I think a distinction can be made between morality and law here is that the latter provides "going rates" of restitution for various immoral actions. Acceptable procedure could also be considered part of law and not morality per se.

I, for one, do make a distinction between morality and ethics. To me, morality concerns behavior for which it is considered legitimate to employ coercion against, whereas ethics concerns behavior which one merely wishes to promote or (non-coercively) discourage.

mikachusetts:
So then, it seems that the position is that while both law and morality are objective and determined by way of rational insight, they occupy different realms.  The problem I have with this, is that I have yet to see a libertarian oppose libertarian legal concepts on moral grounds.  How is it that The Law doesn't run aground of morality if it isn't rooted in Libertarian Morality first?

Take the Somali Xeer, for example. My understanding is that it forbids a Somali from selling land to a foreigner (i.e. a non-Somali). I fail to see how this is consistent with (my) libertarian principles. Even if the land in question is collectively owned by an entire Somali clan or tribe, presumably it's possible for everyone in it to agree to sell the land to a foreigner. On the other hand, I don't think a given body of law is libertarian if it's not rooted in libertarian morality.

mikachusetts:
Block's example fails to demonstrate a moral act which is illegal in the same aspect because no such act can exist in deontologicla libertarian theory.  Illegal acts are necessarily immoral because its absurd to believe that an objective rational law would bar you from behaving morally.  THIS is why the libertarianism of Rothbard, Block, et al. is a moral theory and not a legal one.

Again I agree, except for my caveat below.


* Caveat: while I call myself a "deontological libertarian", I make no pretense of calling my moral theory an objective one - i.e. one that everyone must follow.

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I understand your distinction between legal morality and personal morality, and I think that kind of distinction is ok.

Block:
No, the only proper libertarian judgment is that I am indeed guilty of a battery upon your person. My motives may have been exemplary, but my act, strictly speaking, was in violation of your property rights in yourself. I might well be let off with a light sentence, given the extenuating circumstances, but guilty I am.

He doesn't use the language in this example you gave, so its not clear if he thinks its moral to violate the NAP in this case.  He does, however, say its exemplary, which is strange - not because I don't agree that the action is in fact exemplary - but because he's the one trying to justify a legal system which punishes exemplary behavior!  

EDIT:  I'm glad to see people agree with me on this.    

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mikachusetts:
I don't think you can easily separate a moral theory of what the law ought to do from a theory of personal morality though; not without reaching wierd conclusions.  I mean, it just doesn't make sense to say "the law ought to be such and such no matter what" and then say "there are cases where you ought to break the law."  The second sentence makes sense when referring to existing laws, but not when referring to a rationally constructed legal code which supposedly ought to hold true in all cases!

In other words, why would you advocate a legal code which you thought ought to be broken from time to time, instead of advocating a legal code which allowed for such behaviors in the first place?  

Or, why not just admit that deontological libertarianism is a moral theory which also seeks to establish its morality as law?

I readily do admit that. smiley However, I also think that most of what I call our "moral instincts" are on the side of deontological/moral libertarianism.

Regarding your statements about morality vs. law, the closest thing I can come up with is someone committing an immoral act to prevent a much worse immoral act from being carried out. For example, stealing a gun from a gun shop in order to incapacitate a madman who's shooting up a shopping mall. The important thing here IMO is that, even in such situations, the "hero" should be held accountable for his immoral actions - should the aggrieved party/ies wish to do so.

There's also the possibility for making mistakes. An example here would be coercively intervening against two or more people engaging in a consensual activity that, on first glance, appeared to be aggressive in nature. Even here, I think the same accountability should be applied to the intervening party.

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Clayton replied on Tue, Jan 3 2012 7:26 PM

Block definitely has some huge blindspots in ethical and legal theory. Legal liability is based on causation, not rightness/wrongness. If you are the cause of someone's death, then you are liable for their being killed. A Nazi guard cannot point to some hypothetically higher murder rate that would have prevailed had he not joined in the fray to "save lives" by "murdering less." His scenario disproves his own point. In the case of pushing someone out of the way of a boulder, the morality of that act is irrelevant to legal liability for the broken arm. If the damaged individual chooses to sue, you are liable.

The connection between morality and law is emergent and unboundedly complex (no simple rule connects them). Law emerges from social norms (morality)... if we had no moral sense, there would be no law. But the nobility of intentions or the attempt to achieve a "greater good" are irrelevant to causality and, hence, liability.

If there's any one thing that you can point to in order to differentiate between law and morality, it is the presence of division-of-labor in the resolution of disputes. Social norms are self-enforcing... they are enforced by the susceptibility of individuals to the internal sensitivities in their own mind to social disapproval. Legal disputes are enforced by material threats and frequently require the assistance of a mediator or arbitrator to resolve. Any other distinctions between law and morality either to identify them or completely separate them are based on a failure to understand what morality and law actually are.

Clayton -

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Conza88 replied on Tue, Jan 3 2012 8:06 PM

"I was just reading a Block critique of Friedman, and one of his main claims is that Friedman is mistaking deontological libertarianism as a theory of morality instead of a theory of law.  Besides the fact that its incredibly confusing to call a legal theory "deontological" and treat it as wholly seperate from morality, and the fact that the seminal work of deontological libertarianism is called The ETHICS of Liberty, Block seems straight up wrong in his distinction."

Haha, what? No he's not. Strictly concieved it's a theory of punishment.

"THIS is why the libertarianism of Rothbard, Block, et al. is a moral theory and not a legal one."

Again, no.

"“Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice”–Libertarian Papers vol. 3, no. 19", specifically:

Part IV, “Ethics: Disentangling Law and Morality,” makes a case for removing legal theory from its loose historically evolved association with ethics, viewed as a field that addresses “ought” questions, or the selection of ends in action. It discusses factors—particularly the development of law within religious intellectual and institutional contexts—that have contributed to legal theory’s historical placement and associations with morality. It also examines historical and present-day factors contributing to the evolution of confused conventional formulations of economic and legal concepts. Such factors inhibit the kind of clear thinking in law and economics that could challenge status quo practices and beliefs. It argues that a praxeological approach to jurisprudence is positioned to supply such clear thinking, just as the praxeological approach to economics—causal-realist, counterfactual, deductive economic theory—has done, most famously under the label “Austrian” economics. It also further clarifies the foundations of the rights theory presented in Part I by discussing whether such rights could apply to non-human species.


Ethics: Disentangling Law and Morality

Some factors in the association between law and morality

Libertarians have often pointed out that just because something may be morally wrong does not imply that it should be illegal. Better distinguishing legal concepts from ethical ones and locating legal theory within the a priori domain of praxeology puts this division on a robust theoretical foundation. Conceptions of the relationship between ethics and praxeology are still valuable, in this view, but certain concepts that are sometimes treated under “ethics” are viewed instead as praxeological categories. Having proposed discrete field boundaries for praxeology, economic theory, and legal theory in Part I, we now consider the nature of ethics itself to further clarify the natures and positions of law and morality from a praxeological perspective.

The word “ethics” appears in titles of works that have contributed to the Austro-libertarian legal-theory tradition, for example, The Ethics of Liberty and The Economics and Ethics of Private Property. These works do discuss ethics, as such, to varying degrees. However, they employ praxeological definition and deduction and typically address proto-legal praxeological or legal-theory topics, such as property, torts, contracting and lending.

Placing deductive legal theory within praxeology enables its reconstruction as a categorical and definitional assessment of what types of actions are NAP infringements—separate from moral assessment of such infringements. In this view, an example of an ethical statement would be, “One should not violate rights.” Legal theory helps to make this goal actionable by supplying information concerning the question: “What is ‘violating rights?’”

Huerta de Soto, in a chapter called “The Ethics of Capitalism” (2009, Chapter 12), argues that “efficiency” and “morality and justice” only appear to be competing values if we have an unrealistic, static theory of what “efficiency” is. The discussion interchanges or pairs terms such as morality and justice (170, 172). The model proposed here treats these with greater differentiation. In this view, justice lies within a deductive legal-theory domain, not the “ought” domain of ethics.

Moreover, if deductive legal theory and economic theory are siblings within the same field of praxeology, it should also be unsurprising that properly formulated concepts from each branch are in harmony with one another, as Huerta de Soto argues that they are in this case. Indeed, he writes of justice that:

What is just cannot be inefficient, nor can what is efficient be unjust. The fact is that, under the perspective of dynamic analysis, equity or justice and efficiency are simply two sides of the same coin…This…not only allows efficiency to be appropriately redefined in dynamic terms, but also throws a great deal of light on the criterion of justice which should prevail in social relations. This criterion is based on the traditional principles of morality which allow individual behavior to be judged as just or unjust in accordance with general and abstract juridical rules regulating, basically…property rights… (173).

Thus, when it comes to specifics, the bedrock of Huerta de Soto’s argument often returns to principles of justice, effectively defined in terms of property rights. Nevertheless, it should be noted that some of his arguments may well also apply to more strictly ethical as distinct from property-rights considerations.

Ethical systems as sets of claims about specific categories of means and ends

The focus of ethics as an “ought” field is on the teleological realm of ends, as contrasted with both the “is” realm of causality as treated by the natural sciences and the “must necessarily be” realm of a priori deduction. At the same time, many ethical statements also assert specific relationships among means and ends and recommend certain types of ends and means over others. As Rand put it, “What is morality, or ethics? It is a code of values to guide man’s choices and actions—the choices and actions that determine the purpose and the course of his life” (1961, 13).

Huerta de Soto likens the role of ethical principles to “automatic pilots” (173) that provide ex ante guides for action. He contrasts this with attempts to weigh each and every action in terms of perceived costs and benefits. He demonstrates how such an attempted pragmatic approach is actually a largely hopeless and ill-conceived task from the point of view of economic theory (170). Covey (1989) similarly reformulates traditional ethical principles in contemporary terms as “habits” or “practices.” Such habits have various degrees of likelihood of creating long-term patterns of individual and group success, patterns that are demonstrably superior to the results of attempts to weigh the “costs and benefits” of each action in advance in the absence of such guidelines.

In general, the above accounts conceive of a given code of ethics as a specific body of knowledge or know-how. In praxeological terms, knowledge or know-how can be described as functioning in the context of action in the way that a recipe does for a cook (Kinsella 2011, 1–2). Like recipes, ethical claims often take the form of “Perform action (or action set) of type X and expect to get result (or result set) of type Y.” An ethical code, like a cookbook, provides sets of claims and instructions regarding what the good is (which things to cook) and how it is to be pursued (how to cook them). Even though traditional ethical systems have often also tended to emphasize topics such as what not to cook and how not to burn the casserole, they nevertheless also advance some positive conception of the “good.”

Ethical codes thus provide specific sets of claims about the range of possible ends and means available to actors along with asserted sets of causal relationships among these various ends and means. Ethical codes that contradict laws of human action, or any other laws or principles pertaining to the reality of action as such, or the contextual reality in which given actions occur, are less likely to be successful than those that are better informed by such laws..... pg 56.

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Conza88 replied on Tue, Jan 3 2012 8:22 PM

mikachusetts: He doesn't use the language in this example you gave, so its not clear if he thinks its moral to violate the NAP in this case.  He does, however, say its exemplary, which is strange - not because I don't agree that the action is in fact exemplary - but because he's the one trying to justify a legal system which punishes exemplary behavior!

He's not trying to "justify" it at all, in terms of excuse/acquit. "Excemplary" is similar to calling those in "Defending the Undefendable" heroes.

They have violated the NAP, that much is clear. They have helped murder folks. They have a right to be punished. It's like the example he uses in Libertarian Conundrums (and I'd implore people to read *very interesting* to better understand his point).

"Libertarianism is limited to political philosophy; it does not include ethics.  It takes no view whatsoever as to the moralitv of pornography, prostitution, homosexuality, gambling, drugs, etc.  It states only that, given that these acts take place between consenting adults, they should not be proscribed by law.  When prohibited they are victimless crimes, and thus should be legalized." [..]

Even more narrowly, libertarianism may properly be construed solely as a theory of punishment.  If someone  uses coercion, then it is proper to utilize physical force against him, with the goal of rectifying the injustice, compensating the victim, as much as possible[7]. [..]

II. The Martians

This challenge is an attempt not to frontally attack libertarianism, but only to show it as totally and irredeemably incompatible with utilitarianism.

Here, the "Martians," an all powerful but evil group of beings, beam down a message to an entirely libertarian earth: "Kill innocent person Joe, or we will blow up your entire planet." But killing an innocent person is the paradigm case of illegitimate behavior under libertarianism.  There is (usually) nothing more important to a person than his own life'*. If murder isn't incompatible with this philosophy, then nothing is.  On the other hand, blowing up the entire earth does not appear to be too compatible with utilitarianism.  "Justice thought the heavens fall," may make a good libertarian motto, but it is hard to square this with the maximization of human well being.

There is a way out of this conundrum for the libertarian who wants to maintain ties with utilitarianism.  Strictly speaking, one might argue, libertarianism is not incompatible with murder.  This is because libertarianism in a theory of punishment, not proper behaviour.  The libertarian qua libertarian, then, does not say "Don't murder."  He only says, "If you murder, you should be punished."

Thus, when the Martians beam down their message, it is entirely possible that a utilitarian-libertarian, call him Pete, will kill Joe, and then, after a ticker parade in his honor organized by utilitarians (since he saved the earth and everyone on it from total destruction), will turn himself in for the punishment due to murderers.  In this way we can both maintain libertarianism (the murderer is properly punished) and utilitarianism (the planet is saved).

 

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The libertarian qua libertarian, then, does not say "Don't murder."  He only says, "If you murder, you should be punished."

This is a perfect example of the point I'm trying to make.  If libertarian theory is unable to establish whether or not one ought to commit murder, than how does it come to the conclusion that one should be punished for it?  I mean, I understand how it reaches that conclusion by way of the NAP, what I don't understand is how you advocate a legal theory which conceivably punishes moral behavior.

Its not a logical impossibilty, its just a stupid position to maintain.

 

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Conza88 replied on Tue, Jan 3 2012 8:41 PM

Clayton: "Block definitely has some huge blindspots in ethical and legal theory. Legal liability is based on causation, not rightness/wrongness."

Well that's certainly an odd position to take when you describe his exact position for the rest of the paragraph lmao..

"If you are the cause of someone's death, then you are liable for their being killed. A Nazi guard cannot point to some hypothetically higher murder rate that would have prevailed had he not joined in the fray to "save lives" by "murdering less." His scenario disproves his own point. In the case of pushing someone out of the way of a boulder, the morality of that act is irrelevant to legal liability for the broken arm. If the damaged individual chooses to sue, you are liable."

His scenario doesn't disprove his point at all. Your clearly don't understand it. Maybe that's his short falling, or maybe it's yours. You go onto describe his position so..

"The connection between morality and law is emergent and unboundedly complex (no simple rule connects them). Law emerges from social norms (morality)... if we had no moral sense, there would be no law. But the nobility of intentions or the attempt to achieve a "greater good" are irrelevant to causality and, hence, liability."

Intutiton may provide guidance but that is all. And no, we would still have law if there was no moral sense. It stems out of scarcity and thus a need for property rights. If you mean specifically that individuals wouldn't ever engage in argumentation, attempting to justify their actions, then I agree.

The connection ain't complex really.

Historical roots of the mixing of law with morality

Shooting up with heroin is unlikely to be recommended in a given ethical system that attempts to offer some vision of means and ends in relation to the good, not least due to its addictiveness, long-term health effects and general tendency to undermine the pursuit of other “goods” in both ethical and economic senses. Nevertheless, libertarians argue that even though such an action may be construed as unhelpful or wrong according to most ethical systems, to the extent that it does not violate anyone’s rights, it is not a proper subject of law, defined as that field that addresses violations of rights only.[1]

Yet there is far more to the distinction between the legal and the moral than that libertarians are known to controversially assert it—something that helps explain the very origins of such confusions. The mixing in of law with ethics has long roots.

Legal scholar and historian Harold J. Berman examines the process through which law was altered and employed as a tool for enforcing specific religious morality systems on subject populations during the course of the German and English Reformations. Drawing on original sources, he argues that, “What has traditionally been called a process of secularization of the spiritual law of the church must thus also be viewed as a process of spiritualization of the secular law of the state” (2003, 64).

This “spiritualization of the secular law” formed a pathway through which “moral” matters traditionally handled by the church or communities became the subject of legislation—a legacy that remains with us to this day in the impulse to use the machinery of the state in attempts to “make people better.”[2] He observes in the case of Germany that:

Five principle types of spiritual matters were regulated by ordinances promulgated by secular authority in Protestant German lands during the sixteenth century. These ordinances regulated (1) church liturgy, (2), marriage, (3) schooling, (4) moral discipline, and (5) poor relief. (179)

Disciplinary ordinances (Zuchtornungen) were enacted…to enforce morality by secular authority…it was Lutheran theologians, often law-trained, who not only inspired but also drafted that legislation and presented it to the civil authorities for enactment. (187)

A broader factor in the traditional association of law with morality and ethics is that the origins and development of the entire western legal tradition were inextricably tied with the history of religion. The Canon Law influenced the form and evolution of law and legal reasoning. Canon Law and other bodies of law in medieval Europe—such as the Common Law, Urban Law, the Law Merchant, and Royal Law—were tied in with an ongoing set of power conflicts between geographically scattered and overlapping religious, political, and commercial entities (Berman 1983).

Moreover, it is often monks and priests who become the first formal intellectuals in a society and they are immediately associated through their professions with morality and adherence to ethical codes.[3] Beyond the medieval European universities, think of, as one example, the Buddhist University at Nalanda, India, a major center of philosophy and learning from c.e. 427–1197. Supported financially by others, full-time seekers often proceed to specialize in the study, copying, and debating of formal religious doctrines. They sometimes then also begin to apply the skills thereby developed to wider fields of knowledge—such as the natural sciences, administration, law, and even economics.

This has sometimes led to real progress even in fields such as law and economics, as happened among the Spanish Late Scholastics.[4] Yet one general result of this historical and intellectual linkage with traditional religions is to leave a lingering association between such extensions of scholarship and the religious morality systems in the institutional and intellectual context of which they developed.

- Action Based Jurisprudence, pg 60...

"Any other distinctions between law and morality either to identify them or completely separate them are based on a failure to understand what morality and law actually are."

Yeah, no... I don't think so. The opposite infact.

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Conza88 replied on Tue, Jan 3 2012 8:47 PM

mikachusetts: "If libertarian theory is unable to establish whether or not one ought to commit murder, than how does it come to the conclusion that one should be punished for it? "

Action-based  legal  theory  provides  tools  to  take  into  each  case.  It supplies some of the underlying questions to which case-specific details shape answers.  Legal  principles  guide  inquiry  into  specifics  while  emerging  details suggest  the  most  relevant  set  of  legal  principles  to  apply.  Justice  may  be found at the meeting theory and practice—of deduction, institutions, and the details of specific cases. Sound theory functions as a service to legal practitioners, enabling them do  their jobs more easily and reliably. […]

Legal practice should always be on trial in the court of legal theory, while legal theory should be recognized as insufficient to do justice in any real case. Legal theory and legal practice must therefore  persist  in  a  challenging  but  necessary  marriage  between  distinctive partners  if  they  are  to  produce  the  offspring  of  justice.  Used  properly, praxeological  legal  concepts  not  only  boost  the  clarity  of  legal  theorizing from  “the  armchair,”  they  also  enhance  the  ability  of  practitioners  to  parse specific cases from “the bench.”

"I mean, I understand how it reaches that conclusion by way of the NAP, what I don't understand is how you advocate a legal theory which conceivably punishes moral behavior. Its not a logical impossibilty, its just a stupid position to maintain."

Moral behaviour? According to who? To what theory? Come again? Certainly not to the individual who was killed, or their next of kin who will now starve, surely?

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Can you stop posting what other people say which only loosely addresses the conversation and actually discuss this?  The infograph "between the bench and armchair" is certainly interesting, but it isn't even Block's position - the one that I was actually attacking.

If you think libertarianism is soley a legal philosophy, then you must entertain the notion that it establishes laws which run contrary to morality.  Block even admits this when he tries to give examples of moral behavior which violates the NAP.  But this means that in many cases, one ought to disregard libertarianism when it prohibits moral behavior - a completely absurd position for someone to hold while trying promote libertarian philosophy!

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Conza88 replied on Tue, Jan 3 2012 11:02 PM

mikachusetts: "Can you stop posting what other people say which only loosely addresses the conversation and actually discuss this?"

It addresses the point. To the extent I don't respond from my own, it's because it's not worth my time. And I'm humble enough to not contend I can improve upon what I think others have already said far better than I could.

"If you think libertarianism is soley a legal philosophy, then you must entertain the notion that it establishes laws which run contrary to morality."

What morality? Yours? (Personal individual?)

"But this means that in many cases, one ought to disregard libertarianism when it prohibits moral behavior - a completely absurd position for someone to hold while trying promote libertarian philosophy!"

No. One "ought" to get a better moral system! Libertarianism prohibiting moral behaviour? What on earth are you talking about, give specifics.. because you're strawmanning Block's position. He's not saying it's moral to kill people, there is no ipso facto there, it is about whether the actions are justified or not - RIGHTS violation, then NO they are not. You have a RIGHT TO PUNISH THEN.

Whether or not you CHOOSE TO DO SO, IS COMPLETELY IRRELEVENT TO LIBERTARIANISM (a political philosophy). Good lord, this is basic stuff.

"Praxeology has delimited a sphere of possibility for the category of justification with regard to property norms. With no recourse to “oughts,” praxeology arrives at a somewhat surprising conclusion: there is only one set of norms at the level of property theory that are compatible with the requirements of justification itself-and these are the NAP-based norms.

Praxeology has thus done most of the work when it comes to property theory, leaving ethics itself, understood as an “ought” discipline, with a simple yea-or-nay task-to respect the NAP or not to in action. Only one additional step is required to conclude that the sole property norm that CAN be justified, also IS justified based on additional criteria. Among them, Hoppe argues that the NAP is universalizable, prevents conflicts, can in theory be applied without contradiction from the beginning of mankind onward, and promotes wealth, peace, social harmony, well-being, and character development.

It is important in this context to separate justification as such from any particular act of either following or not following a justified norm. Action implies ends aimed at and requires a choice of ends. Ethics is concerned with choosing ends-some rather than others. Yet justifiability, and possibly also justification itself, can exist independently from any particular action or choice. As Hoppe writes, “There is and remains a difference between establishing a truth claim and instilling a desire to act upon the truth-with ‘ought’ or without it” (2006, 408)." ~ http://libertarianpapers.org/articles/2011/lp-3-1... , pg 24 (Action based Jurisprudence).

"For we are not, in constructing a theory of liberty and property, i.e., a "political" ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such "political ethical" questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for "Smith" — the fellow excluded by the owner from the plank or the lifeboat — to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics.[5]" - Chp 20 TEOL

If anyone wants to further get an understanding of his position (because you think the one in the OP is unclear - then:

"[9] Can Friedman object that I am playing fast and loose with him with the invention of this libertarian Nazi, creating weird examples out of the whole cloth that have nothing to do with libertarianism, in order to refute him on a post hoc basis? He cannot. I have a long paper trail of this sort of thing (Block, 2001B, 2002C, 2003B, 2004D, 2006B) albeit using Martians (the “mother” of all Nazis), not libertarian “Nazis,” to this same end."

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Clayton replied on Wed, Jan 4 2012 12:55 AM

@Conza: Praxeology (from the "armchair") is only useful in legal disputes in the same sense that deductive logic is. Its role is purely formal, it is not substantive, it does not get to the question of who ought to pay (who was right, who was wrong) and what amount ought to be paid. By its nature as a value-free science, it cannot determine these things.

Armchair theorizing is as useless in determing what the law is as it is in determining what the price of apples should be. The price of apples is that price at which buyers are willing to pay and sellers are willing to sell. The correct terms of settlement for rape are whatever terms rapists and rape victims are willing to accept. Theory is of no use in establishing the normative content of the law, it can only provide a framework for rational discourse; assuming the disputants are even interested in rational discourse (some are not, cf the practice of dueling).

I want to make another remark on the Nazi/boulder argument. I think I missed the original parallel being drawn. The argument appears to be that it is moral to push someone out of the way of a rolling boulder, yet you are legally liable for the damage caused in the case of a broken arm... similarly, it is moral to kill some Jews in order to save others even though you are legally liable for the killing you did do. I think this neglects the feedback of law onto morality/ethics. The relationship between morality and law is not a one-way street... what is right/wrong play a role in determining what is legal/illegal but, by the same token, what is legal/illegal play a role in determining what is right/wrong.

This is because we cannot know the wider consequences of our individual choices. We cannot know why the price of an orange at the local grocery store is $2.39... it's the result of a innumerable specific facts strung all over the globe and spread through time. Similarly, we cannot know from reflection alone whether polluting a particular stream - for example - is right or wrong. This information can only be discovered through the process of legal dispute in specific cases argued out between individuals with conflicting ends. When such legal disputes are settled and a pattern or principle emerges, we can say something about the morality/immorality of behavior which conforms or not with the law. In general, it is morally wrong to behave unlawfully and morally right to behave lawfully.

In the case of the rolling boulder, I think it is not obvious that it is morally right to push someone out of the way when you may cause harm for which you are likely to be held legally liable. Is it really commendable to save a careless individual's life at the expense of feeding and clothing your children when you are laden with lawsuits for the damage you did to his body in the process? Unless the law were to cognize the nobility of your motives as a factor that absolved you of liability for subsequent damage in this particular case and others similar to it, I think you could argue that you would be acting immorally to push the person out of the way of the rolling boulder.

To extend this a little further, I think you could argue that what constitutes a situation "sufficiently similar" to the case of a rolling boulder would break down as you move from the noble intent of saving a life at the cost of breaking an arm to the case of shooting some Jews to (supposedly) save other Jews. There is no reason to suppose that the law is so wooden as to be unable to distinguish between these two scenarios which means that the parallelism breaks down.

Clayton -

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Conza, you are either missing the context of my argument or just opposing me for the sake of defending Block.

When I say morality, I mean Block's morality, the one that leads him to the conclusion:

"However, assume that it would be possible for our libertarian concentration camp guard to murder only 90 prisoners per week while bringing 10 of them to safety every seven days. Would it be moral for  him to do this? I argue yes. He will have saved 520 innocents from certain death within the year, at great risk to his own life. Not only were his actions moral, they were heroic." 

In my initial post, I explained that I assume Block to view morality rationally and objectively because he views law in that way, and any criticisms he would hold against objective morality would also apply to his conception of law.  Regardless, Block has established that he believes there are cases where it is moral to defy the NAP, and this is where I base my criticism.

Since there are cases where it is moral to oppose libertarian law (according to Block), then it is a logical conclusion that "libertarian legal theory sometimes punishes moral behavior."  That's not a debatable point if you accept Block's position.  From here, I make the inference that if it is moral to defy libertarian law in some cases, then it is immoral to advocate libertarianism across the board.  For Block specifically, it is an absurd position to maintain because it weakens his case for moral acts - if Block is promoting a theory which he believes to punish moral behavior then he is either confused or just doesn't think very highly of moral behavior.  It isn't wrong or impossible, its just weak.

And you can't say that Block ought to adopt a better theory of morality in light of this criticism, because this elevates libertarianism to the status of moral theory. 

On the other hand, you can admit that libertarianism IS a moral theory which attempts to distinguish right from wrong, it says what you ought not to do in everyday situations, and wishes to codify itself into law.  This seems like a much more reasonable position to hold.

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meambobbo replied on Tue, Jun 26 2012 11:55 AM

I think the problem is that you are taking numerous actions and lumping them together into a single concept, then trying to judge the morality of the concept rather than the individual actions.  Murder is bad.  Protecting others from murder is good.  The plan may have necessitated the former to accomplish the latter, but does that mean the murders became moral?

There is also conflation of intention.  We could say the individual didn't intend to murder Jews, in light of the entire plan, but the fact of the matter is that for each Jew he DID kill, he completely intended to do so.  There was nothing accidental about it.  It may not have been desirable given his master plan, but it was intentional.

And now to muddy the waters.  What ratio of saves Jews to murdered Jews would be required to make the entire plan moral?  Surely if he murdered 1,000,000 Jews and saved 1 he probably couldn't be considered to have acted morally as a whole.  What about saving 1,000,000 and murdering 1?

And I think that's the entire point.  The friends and families of the murdered Jews may understand his plan and even admire it, but they have still been wronged and the Nazi is the most-directly-responsible party.

As a resolution for such, I would think that those saved and their friends and families would petition the friends and families of those murdered as well as the courts to allow them to bear the brunt of the punishment.  For instance, if the courts ruled that the Nazi owed the families $1,000,000 each and had to perform 100,000 hours of community service, then those who believed he acted morally on the whole could volunteer funds and time to share the punishment.  This would also help determine to some extent the net morality in the case.  For instance, in the case where he murders 1,000,000 to save 1, obviously he would be heavily punished with little help, which is probably appropriate given that he seems to have committed a net immorality in a utilitarian sense.  In the opposite case, the 1,000,000 he saved could quickly help him alleviate his punishment for the 1 Jew he murdered.

Sharing punishment opens more cans of worms, but it seems to answer this particular question very well.  If it appears people acts morally on net in a utilitarian sense, although their complete courses of action require both moral and immoral behavior, they may not be punished at all since those they helped bear that burden, but at the same time, those wronged in the process are granted justice.

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To my mind, deontological ethics can be the result of either:

(a) belief in objective ethics, where the principles are either of divine/otherworldly origin or the product of a priori reasoning

(b) a process where one posits certain goals, and then determines which ethical principles the universal instantiation of which are most likely to achieve those goals

I take the second route: i.e. I don't support in the NAP because I believe it was handed down from on high, or because I think it is objectively true, but rather because I know that the kind of world in which I want to live will be most likely to come into being if the NAP is universally instantiated. To my mind, consequentialist ethics are just immature ethics. That is, consequentialists know what kind of results they want, but they haven't learned enough about the world to know which principles should be universally adopted to best achieve those results, so they have no principles and just aim directly for the goals whenever they happen to see an opportunity.  By way of analogy, a deontologist is like someone who knows the behavior of deer and hunts them systematically, with great success, while a consequentialist is a hunter who just shoots whenever he sees a deer, oblivious that there might be a better way of achieving what he wants.

As for the "legal or moral theory" question, I would say both. First there is the libertarian ethic (however one arrives at it), and then there are legal principles that are applications of the libertarian ethic. Libertarian ethics and law should always be in accord. As for Block's example, I think it's true that the law tends to be deontological (and should be) and personal ethics tend to be consequentialist (and should not be, IMO). Like I said, the difference between the two is one of knowledge, and it's no surprise that people who specifically study social interaction (like people who develop law) lean toward the more mature deontological position as a result of their greater knowledge (even if their conclusions are incorrect, they nonetheless develop principles because of more systematic study).

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