 Welcome to George H. Smith's Excursions into Libertarian Thought, a production of Libertarianism.org and the Cato Institute. I'm your host, Terence West. Defending the Non-Aggression Principle, a reply to Matt Zwolinski, Part 3 by George H. Smith. In Part 1 of my critique of Matt Zwolinski's article, Six Reasons Why Libertarians Should Reject the Non-Aggression Principle, I noted that I was not obligated to write detailed responses to Zwolinski's sketchy criticisms, but it is nearly impossible to explain the flaws in three of Zwolinski's reasons without going into a bit of detail. This will leave two additional points for the fourth and final part of my critique. Of course, Zwolinski might claim that he could not cover everything in a single brief article, but Brevity does not excuse misrepresenting some of the positions that he set out to criticize, as we find with the last two reasons that I discuss in this part. Zwolinski claims that the non-aggression principle, NAP, entails an all-or-nothing attitude towards risk. The NAP clearly implies that it's wrong for me to shoot you in the head, but to borrow an example from David Friedman, what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger? What if it's not one bullet, but five? Unless you have consented to play Russian roulette, the situation involves far more than a risk. It is first and foremost a threat, and you have the right to defend yourself against legitimate threats. If someone shoots a pistol at you from a distance, but misses his intended target on the first shot, then you don't need to wait for a subsequent bullet to strike your body before exercising your right of self-defense, say by shooting back. Similarly, if someone loads one or more bullets into a revolver and points it at your head, then you don't need to wait until he pulls the trigger before you may respond with defensive violence, so the number of bullets in the revolver is irrelevant. The mere pointing of a gun in your head qualifies as a serious threat, even if, unbeknownst to you, Zwilinski's revolver is empty. See my detailed treatment of threats in justice entrepreneurship in a free market and justice entrepreneurship revisited in Journal of Libertarian Studies 3, 1979. Zwilinski continues. Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway. What if we suffer a heart attack or become distracted, or when we fly airplanes over populated areas? Here, Zwilinski raises the possibility of accidents, but accidents are in an altogether different category than deliberate threats. Suppose someone forces you, on pain of death, to walk a narrow plank across a deep chasm. Does this involve risk? Of course it does, but this risk has been imposed by the threat of force, and that's the relevant point. If you fall off the plank to your death, we would not properly call this an accidental death, as we do with automobile and plane accidents, since you were coerced into taking the risk. Similarly, if the hammer of Zwilinski's revolver strikes a loaded chamber and you're shot in the head, then your death would not be accidental, provided you did not consent. If you don't wish to assume the risk of driving, then don't drive. If you don't want to run the risk of an airplane crashing into your house, then move to a safer location. You don't own the airspace used by planes after all. No scenario of the risks encountered in everyday life is remotely comparable to Zwilinski deliberately pointing a gun at your head, an act that any reasonable person would interpret as a serious threat. Zwilinski claims that the NAP does not prohibit fraud. Libertarians usually say that violence may legitimately be used to prevent either force or fraud, but according to NAP, the only legitimate use of force is to prevent or to punish the initiatory use of physical violence by others, and fraud is not physical violence. If I tell you that the painting you want to buy is a genuine Renoir, and it's not, I have not physically aggressed against you. But if you buy it, find out it's fake, and then send the police, or your protective agency, over to my house to get your money back, then you are aggressing against me. So not only does a prohibition on fraud not follow from the NAP, it is not even compatible with it, since the use of force to prohibit fraud itself constitutes the initiation of physical violence. Zwilinski seems unaware that Rothbard analyzed the issue of fraud in the context of a title transfer theory of contracts. As Rothbard wrote, when Smith exchanges a bag of apples for Jones' pound of butter, he is actually transferring his ownership rights, i.e., title, in the apples in exchange for the ownership rights of the butter, and vice versa. It's not as if Zwilinski needed to search obscure articles by Rothbard to find his treatment of contract and fraud, since it appears in his major work on political ethics, the Ethics of Liberty. For a brief explanation, see the Wiki article, The Transfer Theory of Contract. Here's an excerpt from the property rights and the Theory of Contract, Chapter 19 of the Ethics of Liberty. Under our proposed theory, would fraud be actionable at law? Yes, because fraud is a failure to fulfill a voluntary agreed upon transfer of property, and is therefore implicit theft. If, for example, A sells to B a package which A says contains a radio and it contains only a pile of scrap metal, then A has taken B's money and not fulfilled the agreed upon conditions for such a transfer, the delivery of a radio. A has therefore stolen B's property. This analysis, which has been standard libertarian fare for many decades, rests on a distinction between a title to property and the possession of property. A title is the rightful claim of ownership and should be distinguished from physical possession. If a thief enters your house and steals your computer while you're absent, then you still retain the title to that computer, even though the thief has physical control over it. And since to have a property right or title to a computer means the right to use and dispose of that computer, the thief is violating your property right to the computer so long as he maintains possession of it without your consent. In short, the thief, by exercising physical control over your computer without your consent, is forcibly preventing you from using your property as you see fit. It is a simple matter to apply this reasoning to a case of fraud. Suppose I purchase a diamond ring from a jeweler for a thousand dollars, but I'm given a fake diamond. According to our agreement, I transferred my title to one thousand dollars to the jeweler in exchange for his title to a diamond ring. Well, now he has possession of the one thousand dollars, but I don't have possession of a diamond ring, even though I have the title to one. Hence, if the jeweler refuses to transfer possession of the property to which I have legitimate title then, as with the thief, it is withholding my property by force. And if perchance the jeweler doesn't have the diamond ring, then the title to the one thousand dollars reverts back to me. Thus, once again, if the jeweler refuses to refund the money, he is again forcibly preventing me from using and disposing of my property as I see fit. As with any theory, objections might be raised against Rothbard's title transfer theory of contract and its implication for fraud. But such objections are irrelevant to Zwolinski's critique, for he doesn't so much as hint that Rothbard even had a theory of fraud, much less one that meshes quite nicely with his title transfer theory of contract. Zwolinski claims that the NAP is parasitic on a theory of property. Even if the NAP is correct, it cannot serve as a fundamental principle of libertarian ethics because its meaning and normative force are entirely parasitic on an underlying theory of property. Suppose A is walking across an empty field when B jumps out of the bushes and clubs A on the head. It certainly looks like B is aggressing against A in this case. But on the libertarian view, whether this is so depends entirely on the relevant property rights. Specifically, who owns the field? If it's B's field and A was crossing it without B's consent, then A was the one who was actually aggressing against B. Thus, aggression on a libertarian view doesn't really mean physical violence at all. It means violation of property rights. But if this is true, then the NAP's focus on aggression and violence is, at best, superfluous and at worst, misleading. It is the enforcement of property rights, not the prohibition of aggression that is fundamental to libertarianism. As before, Zwolinski seems unaware of how Rothbard dealt with the topic at hand. In Property and Criminality, Chapter 9 of the Ethics of Liberty, Rothbard clarified the basic rule of the libertarian society by stating that no one has the right to aggress against the legitimate or just property of another. As Rothbard put it in the second chapter of For a New Liberty, the central axiom of the libertarian creed is non-aggression against anyone's person and property. Again, in the first paragraph under the non-aggression axiom, Rothbard incorporates the notion of property rights into his formulation of the NAP. The libertarian creed rests upon one central axiom that no man or group of men may aggress against the person or property of anyone else. This may be called the non-aggression axiom. Aggression is defined as the initiation of the use or threat of physical violence against the person or property of anyone else. Aggression is therefore synonymous with invasion of property rights. Given these and many similar statements by Rothbard, it's very odd to complain as Zwolinski does that the meaning and normative force of the NAP are entirely parasitic on an underlying theory of property. Rothbard made precisely that point many times and in considerable detail by incorporating a theory of property rights into his conception of aggression. In other words, it is only by specifying the relevant property rights that we can identify aggression in the first place. Again, Rothbard's approach might be open to criticism, but for Zwolinski to state that Rothbard's notion of aggression depends on a theory of property rights and to offer this as a criticism of Rothbard when in fact it is essential to his conception of aggression displays an ignorance of Rothbard's ideas. At least Zwolinski doesn't completely miss the boat when he says that aggression on the libertarian view doesn't really mean physical violence at all. This relates to a distinction I mentioned in part one of this series, namely a possible difference between violence and force. I'll take up this topic in part four along with Zwolinski's other two points about pollution and the rights of children. This has been excursions into libertarian thought, a production of libertarianism.org and the Cato Institute. To learn more about libertarian philosophy and history, visit www.libertarianism.org. I'm Terence West. Thanks for listening.