I am always interested in the proper application of the libertarian non-aggression principle. When looking at agencies like the state, I often ponder the proper use of this principle, given that authority and liability aren’t always clearly defined. When government wages an unjust aggressive war, exactly who is responsible? The individual soldier, who follows the orders, the officers and high-ranking military officials, who give the orders, or the politicians, who set the policies that lead to and directly start the wars in the first place? What of the citizens who elect such politicians by voting for them?
There may also be a 5th group, the “private” deep-state actors involved in influencing policy: think-tanks and foundations, corporate and foreign lobbies (particularly arms-manufacturers and Israel, respectively), and other sorts of pressure groups. These organizations are also typically involved in crafting the foreign policy which so often commits nations to war. It is not only public officials who make such decisions.
So, again, which of these groups bears the brunt of the (moral or legal) responsibility? Do any carry more burden than the others, or do they all have the same degree of liability?
Does the soldier carry this entire moral burden for being the individual to actually pull the trigger, the direct causal-link in the use of unjust force against another human being?
Or, on the other hand, is it the case that the civilian “leaders” of the military, the policy-makers and bureaucrats, carry this weight?
As is often alleged by the “support the troops” clique, soldiers simply follow orders, as do officers from their own higher-ups. Taking this to its logical conclusion, they maintain that soldiers have absolutely zeroresponsibility in any unjust violence they may inflict, so long as they were ordered to do so. This rests the responsibility squarely on the shoulders of those who come up with the grand plan of waging a war in the first place. While this claim seems partially correct, it employs a dubious standard. There are few, if any, other situations where a person is not held liable for criminal acts simply because somebody told them to do it.
Contrary to the prior position, radicals and anarchists of various stripes will maintain that it is, in fact, the individual soldier who carries the majority of the legal or ethical liability in his own actions, and that “orders” from some “authority” have zero meaning or weight in the situation whatsoever.
While this argument is somewhat appealing to my radical tendencies, I believe it also to be not entirely correct. Both of these views express some aspect of truth; however neither fully explains how or why one participating group escapes all or most responsibility, and why the other must bear it. To properly sort through the confusion, a consistent application of sound principles is required.
So, then, what does the Rothbardian have to say on this matter?
Let’s start trying to figure that out by using a few analogies. I grant that analogies are rarely perfect; however I believe they are often useful when thinking through such matters. The application of legal principles is, in a way, tested by thought experiments. When one attempts to apply abstract concepts to concrete reality, it helps to uncover any strengths or weaknesses that the legal theory might have by throwing it at different sorts of situations, different kinds of conflicts.
Imagine a scenario in which a wife is cheating on her husband with another man. The wife someday decides that she no longer wishes her husband to be alive and devises a plot, conspiring with her new lover, to kill him. If the boyfriend kills the husband at the wife’s behest without the wife actually using any force herself, has she violated the non-aggression principle, i.e., has she committed a crime?
I believe the answer to this is yes. The wife, while not personally using any force, was indeed a direct causal-link in the murder of her husband. (For an excellent explanation of this view, see Stephan Kinsella –“Correcting Some Common Libertarian Misconceptions” at around 15:40)
An important element of criminal justice, and rights theory, is the determination of intent. If the wife purposefully uses her boyfriend as a means to achieve the end of killing her husband, she may rightfully be implicated in the crime. “Conspiracy”, then, in some formulation, is indeed a justified aspect of law and it certainly can be considered a genuine crime under the libertarian legal-ethical framework.
Another easy example is that of the mob boss. While the mob boss may stay home whilst his crony underlings go out to do the real crime, his slightly less direct involvement (giving orders, funding, planning, etc.) would still implicate him in their criminal acts. Simply having knowledge about a crime is not a significant criterion, but those who directly conspire with criminals to purposely aid them in such acts are, themselves, criminals too.
The relevant point to the issue at hand, the waging of war, is that people can share the guilt in acts of aggression, even if some parties aren’t directly involved in the act itself. By intending to use other people as means to the end of committing some crime, one may incur some liability or guilt, depending on the character and degree of their participation.
Some libertarians may attempt to apply the non-aggression principle (from here on “NAP”) in such a way that they completely exempt conspirators, funders, and order-givers, making it all-or-nothing for any would-be criminal. They reason that the NAP applies only to the specific individuals who actually commit the aggression, never to those who simply help them to carry it out (either before or after the crime).
However, if one seeks to hold this position, it seems he must completely abandon any notion that non-military political agents are criminals of any sort. Politicians never actually fight the wars they start, nor do they enforce their own policies. Such tasks are left completely to the police and military, the state’s strong-arm.
If a libertarian wishes to maintain that only explicit aggressors have culpability in the crimes they commit, and not conspirators, they immediately exempt all politicians from the multitude of things they so often hold them responsible for, namely war! This stubborn application of the NAP is not justified, and it certainly leads to some pretty non-libertarian conclusions.
Applying Misesian insights about human action allows us to easier see how conspirators and abettors can be criminally liable in acts of aggression. People act toward ends using means. If an end involves the commission of aggression, and the means involve convincing, helping, planning for, funding, or aiding somebody else to see that end reached, the abettor may be guilty of a rights-violation to some degree, by proxy.
It may be the case that the conspirator should face less severe penalties, depending on the circumstances. In the wife-husband scenario, the wife may face a lighter sentence, as she didn’t actually use violence and the boyfriend didn’t have to go through with it. All that the wife was responsible for here was persuading somebody, and maybe helping to plan a murder.
(Yet another analogous scenario might involve a lynch-mob, where a man shouts “There he is! Get him boys!” In some sense, this man helped to “plan” the lynching, was directly involved in it, and was a purposeful central causal-link in the event; a willing participant.)
In the mob-boss’s sentencing, he may face more severe punishment, as he oversaw and ordered dozens or hundreds of different crimes, directly committed by various different people. This case, I believe, would also apply to the politician, who oversees and, indeed, sometimes directly controls the military to commit crimes of aggression on a wide scale, especially in the case of the Commander in Chief.
Using this formulation, it allows one to see how politicians and other political-agents are indeed culpable for the violence and chaos they spread around the globe, but yet it does not in any way exonerate the trigger-men on the ground. The individual soldier is still directly responsible for any aggression he commits. He is a free agent with his own will, not simply an order-driven automaton.
But this brings us to another nuanced concern: what of the soldier’s intent and foreknowledge? If a soldier genuinely believes he is attacking or killing a “bad guy”, or a criminal who’s a genuine and direct threat to citizens of the United States and a known user of aggression, what of his culpability then?
Keeping with the trend of this piece, I offer another analogous scenario. The conditions of the situation have to be made as parallel as possible, so bear with the somewhat awkward telling of the analogy.
Imagine that a group of thugs, armed, invade a home and harm one of the occupants; say, the daughter of the family. The father arrives home during, or shortly after this. His neighbor, not fully aware of the situation, points out to him that a stranger walking down the street toward them was part of this gang of thugs.
The father, fully convinced that this stranger is directly threatening his life or his family, shoots him dead. However, it turns out the stranger was just a random innocent guy, not involved at all.
What then? The father genuinely believed he was protecting innocent people, yet he, in fact, was not, as the stranger wasn’t actually a danger to anyone.
Under the libertarian framework, I believe that the father would certainly still be guilty in this murder, yet maybe his punishment would be less harsh than that of a killer who knew exactly who he was killing and why.
People have the right to defend themselves, and man’s mind is not that of a god. He may imperfectly calculate the factors of the situation and do something which he thought to be right and necessary, yet it actually turns out to be an egregious crime. Such a person has still taken a life unjustly, but under circumstances categorically different than that of an intentional murder.
Applying this to soldiers, then, it seems the libertarian is indeed justified in his condemnation of those soldiers who naively follow orders to commit atrocities, yet we may reserve a small amount of absolution for those who truly and genuinely thought they were only fighting America’s enemies, protecting the innocent, etc.
This is clearly an incredibly uninformed and fantastic viewpoint, and many troops have likely repeated it as their own view disingenuously, but we cannot get into the minds of such people to know for sure. Legal theory does not require this kind of pinpoint accurate computation of crime and punishment.
The goal here is not to derive specific punishments or to quantify individual responsibility in precise amounts, but only to establish general principles which should be applied in variation as the unique factors of each case are analyzed. Particular punishments and rulings must be figured out through a judicial process, it seems unlikely that abstract principles could offer such specific answers.
Law should not be extremely stiff and immovable. Such inflexibility can easily lead to arbitrary and unjust rulings in cases dealing with special individual circumstances. However, this is not to say that law shouldn’t be nailed down by certain principles, most especially the principle of non aggression (many other valid legal-judicial principles were, to varying degrees, expressed in the US constitution and other founding documents: juries, speedy trials, presumption of innocence, etc.).
The pursuit of justice should involve the real-world application of legal theory, which is derived from principles discovered, vetted, and established by various means of discursive reasoning, thought experiment, common sense, and empirical evidence.
There is a certain degree of greyness in the actual implementation of legal theory, which makes it desirable to allow for enough “slack” to mold to the contours of difficult and complex situations.
The potential for such a difficult case does not invalidate the legal principles themselves, but only offers a challenge in how they are applied. Property rights are not to be discarded at the first sign of difficulty, the problem resides in their specific application.
Precedent-based law can then take these tricky cases into account in the future as to improve the implementation of legal principles. Such a precedent-based system can inform legal theory itself as well.
Legal principles should root the core of the law to a certain conception of justice, which is to be aimed for at all times. Even conceding that “perfect justice” is not possible, there must be at least some basic notion of what justice means if a legal system is to function smoothly and effectively.
The libertarian, apart from all else, uniquely formulates legal theory as well as a conception of rights and justice in the terms of property rights. Property is simply the rightful dominion over some physical thing in time and space. This certainly includes a person’s own body.
If you don’t like the idea of human bodies being property—a complaint many on the left might express—think about it in terms of choice. Who gets to choose? If a bald guy wants to cut off another person’s hair and use it as his own, who gets to decide? Whose ownership claim takes precedence? The matter can be easily formulated into the terms of property and ownership, but also into choice and rightful control. These are one and the same. All human rights are, in fact, property rights.
The concepts of property rights and rightful dominion are essentially just other ways of formulating the NAP. Under the NAP, aggression against others is deemed illegitimate or immoral, and property rights help us understand who has a right to do what. When a man defends himself using violence, he is asserting his rightful dominion in his own body, his property right. In this way, the NAP and property rights are intimately tied together, each informing the other.
Broadly, libertarian legal theory involves the practical application of the non-aggression principle and the development of its philosophical underpinnings. “Crime” is always some form of aggression against person or property, each term having been defined and explained extensively in libertarian writings. Formulating crime in this way allows one to easily see how the current state of law all over the world imprisons and punishes people who are not actually guilty of any genuine crime, as well as allows the most heinous criminals to go free.
To the libertarian, crimes necessarily have victims, because crimes explicitly involve the initiation of aggression, force, fraud, theft, etc. (or conspiratorial involvement in these things, as explained above). Such acts have to be doneto somebody. There is no such thing as crime against one’s self, or “society”. “Society” does not act as its own entity and only exists insofar as the individuals who comprise it do. Understanding law and crime as fundamentally involving the interactions between individuals and their ownership claims is central to the libertarian view.
With the issue of criminal liability in war covered, as a final concern I will turn to voting. Some libertarians and anarchists claim that voting is somehow a form of implicit aggression, as voting means interacting with the state, and the state’s very existence relies on aggression. Interacting with government in this way either means one condones, or somehow directly aids in crimes committed by the state.
I disagree with this argument. Clearly we can immediately rule out explicit, actual aggression in the act of voting. Filling out a ballot, checking a box, pressing a button does not involve any aggression whatsoever (although I have never voted once in my life, so I suppose I could be missing something here). As far as implicit force goes, this is true only insofar as one actually supports and votes for more violence and force. It is indeed possible to vote for a candidate, like Ron Paul, who would seek to reduce that aggression with all their might.
Such a vote would amount to an act of self-defense, trying to use some means (in this case peaceful) to prevent a criminal (state-official) from infringing one’s rights. (For much more on this see the classic and superb work “No Treason” by Lysander Spooner.)
As I have discussed above, guilt and liability can indeed be transferred down a causal-chain to willing participants and conspirators in some crimes. This argument, however, does not at all apply to voting, since the voter is necessarily under the rule or occupation of an aggressor state. Even in the case of a pro-War Party vote, it may be far too remote from the direct sequence of events that constitute the crimes of war–as well as those generally committed by states on a daily basis–to be considered participation in acts of aggression..
The voter is incredibly insignificant in the process of war-making, only a distant cheerleader applauding the crimes of others. Such a person may be condemned morally, but legally they are likely too dis-connected from the actual crafting and implementation of policy for them to incur any liability.
So while the War Party voter is morally and socially despicable, he is not legally culpable for merely agreeing with criminal acts. However, the anti-aggression or anti-war voter is fully justified in both the legal and moral sense. He is using a tool available to him to attempt to reduce aggression and butchery in the world, not add to it.
Using an individualist analysis of human action and the consistent application of property rights, we are able to flesh out the broader guidelines for the law. Whatever cracks that might appear are filled by the real-world application and development of precedents as particular cases are dealt with. This methodology is both nuanced and yet it leads one to quite commonsensical conclusions: don’t hurt people, and don’t take their stuff.
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