 Hello my friends and welcome to the 63rd episode of Patterson in Pursuit. This week's gonna be an interview breakdown of Episode 50, which was my conversation with Stefan Kinsella about the non-aggression principle and argumentation ethics, two fundamental ideas in libertarian political theory. Now because that conversation lasted about an hour and a half, I'm not gonna go through both of them on this interview breakdown, I'm actually gonna break this breakdown into two parts. This week is going to be about the non-aggression principle. And if you've never heard of the non-aggression principle before, don't worry, it's simply the principle that it is not legitimate to initiate the use of force against a non-aggressor. In other words, don't use force on people that aren't using force. Kinda sounds like the golden rule, I think it's a pretty good idea, that's what we're talking about this episode. At a future unspecified date, I will break down the part on argumentation ethics. That second part will take a little bit longer, because it was the majority of our conversation, and because there's quite a lot to say on the topic. The non-aggression principle is a fantastic topic in its own right. I love talking about it, love thinking about it, it comes up all the time when talking about political theory, especially to those who are of the libertarian disposition which I unabashedly am. So hopefully this conversation will spark some good dialogue amongst those who are listening to the episode. There's actually a split in the libertarian community between people who are non-aggression principle absolutists, and I don't mean that in a pejorative way, who thinks that there are no exception to the non-aggression principle, and libertarian non-aggression principle 99%ers, maybe I would be in that group, and there is a group of people that thinks that non-aggression principle is not so important, but most of the time, if you're talking to libertarians, they're gonna have favorable things to say about the non-aggression principle, whether or not they treat it as some absolute thing, or a pretty good rule of thumb. Before we dive into the interview, I want to give you a public service announcement. 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First we talked about the non-aggression principle. If I were to say something like as a general rule, I don't support aggression against people that aren't being violent, but I'll make some exceptions. So I could say something like, I don't think you should put your hands on other people when they don't give you permission to do that. But if somebody's running out in the street, an adult's on their smartphone and the bus is coming and you go, hey buddy, and you grab them. I think in a case like that, it's such an emergency situation. We don't have time to have a conversation with someone and find out whether they really want to commit suicide or whether they would consent to being briefly jostled to save their life. So all you can do in a split second is try to use the crude language that we have, which is social conventions, because this is all a matter of, when we talk about consent, consent is a human, it has to be communicated by a public language. But language need not only be birds, you can have two people that don't even speak the same language, get along with each other. So there's always a background assumption of norms, customs, and things like that that inform language. So I think when you see someone, a regular businessman or the cell phone about to walk into the face of a bus that's coming and he's obviously distracted, the assumption is that he's implicitly communicating by his existence in a society like that, without walking around with a sign saying, hey, if you see me about to die, don't rescue me. So he's not changing the default presumption of what communication is. So basically my point is most people would assume that the guy would consent to being rescued. Okay. Now, I actually agree with this position, though I think it challenges the idea of the absolutism of the non-aggression principle, if already we're saying, well, there are norms and conventions that we assume somebody who has this set of beliefs, we assume they would have consented. Well, I think that's true. I think that's also an argument to say, well, therefore, this non-aggression principle is not absolute. Most people in almost every circumstance would say, hey, if I don't give you permission, don't put your hands on me. Yeah, we would all agree to that. And then they had a little asterisk of I would say, except if I am walking out in the middle of the street, you may shove me out. And even if it breaks my arm when you shove me, if you save my life, that's okay. It's true. It's a social convention and it's true that in law, I think it would be recognized as such. But I think it also challenges the idea that the non-aggression principle is something without any exceptions. But even if we say it's an act of aggression to rescue your friend who wants to commit suicide because you think he'll see reason in the light of day or rescuing this businessman about to walk into the face of a Apache helicopter or whatever. Even in that case, what you could say is the rescuer is willing to take the risk of some slight legal liability in order to do a good deed for someone else. And so he just hopes for forgiveness. And that's one way to approach that issue as well. Now this is an interesting idea. I've had several conversations with libertarians who espouse this way of thinking about justice that a rescuer would take on some small amount of legal liability that technically the person who was rescued could still sue because there was a rights violation. And this is the question that I have for those individuals. I grant that it helps with consistency of legal principle. I grant that. However, here's the question. What benefit is there to keep open the possibility of a lawsuit when somebody has been forcibly rescued from the middle of the street? Why would such a legal system be preferable over one which says, hey, the nonaggression principle is great, but there are a couple of limited exceptions. Why would we want to keep open legal liability for a rescuer just for the sake of what? Now, Stefan Kinsella didn't give this response. I actually don't know if I asked that directly. But another prominent libertarian who I've spoken with private about this has said it's about justice, that the reason we keep open that legal liability is for the preservation of justice. Now, I don't have a belief in this kind of existence of cosmic justice that even if it's a net negative in society, if in emergency circumstances you can be sued by somebody that you rescue just because there's a rights violation, let's say they're poor and they want to extort you for as much money as they can, even if that sounds shitty and it might make you less likely to rescue somebody in a dire circumstance for the sake of justice, we should be in that legal system. Now, again, I don't know if Stefan Kinsella has that belief, but this is a position that I frequently encounter and I want to know what is the benefit of preserving that type of legal consistency at all costs, we must be consistent even when it might result in an outcome that we think is quite frankly unjust. Now, I do want to add here, I'm not somebody with a position that thinks there are no absolutes, there are no principles without exception. I'm just saying I don't think the fundamental principle is the non-aggression principle precisely because just around the edges in the one percent of cases or less, you do have these circumstances where it seems very clear to me a just legal system is one that contains exceptions for putting your hands on somebody else. Would you say that if we're going to be really strict in our analysis of rights, that in the case of pulling the guy out of the street so he doesn't get hit by the bus, technically speaking that would be a rights violation, but it wouldn't be something that's immoral and it would be under the assumption that the person would have permitted it, but if we're going to be technical, it's still as a rights violation. No, if the assumption is he would have permitted it and if that assumption is correct, then it's not a rights violation because it's consented to. So it's not a rights violation based on the assumption of consent? Because that seems like a dubious, if I could say, oh, I thought you consented to take my television, or if I thought you consented to me taking your television. Well, I think opinions among libertarians would vary on that. So I just want to be clear about that position again. He's saying it's not a rights violation if there's the assumption that the individual would have consented to it and that that assumption is correct. Now, again, I think both of those claims are debatable. On the one hand, that you can just assume that an individual consents to putting your hands on them. And second, that it should be up to the person who was rescued from the street whether or not it's going to be a rights violation. I prefer a third option, which is to say, even in the case where somebody is trying to commit suicide and trying to be in the middle of the street, but you see them at the split second and you save them by shoving them, it is not a rights violation. I think to rest this question in the hands of the person who's assuming the other person would consent or waiting to hear whether or not the rescuer wanted to be saved, I don't like either of those options. I want a third one. And even if you agree with Stephan Kinsella here, it makes the non-aggression principle a lot less simple and straightforward. So it's no longer just don't initiate force against a non-aggressor. It's also what we mean by aggressor depends on you trying to guess somebody else's consenting about you using some kind of physical force on them in certain circumstances, but sometimes it could be wrong. You could say there's maybe three distinct views there. I mean, I had my own view, I lean a certain way. You could say that as the rescuer, I'm assuming the guy will retroactively say he consented and everything will be fine. There's like a 99.9% chance. So I'm taking a very small risk that I am violated. Like in other words, it's epistemologically or epistemically unknowable whether I'm violating his rights. I can't know until after the fact, but I'm going to take the chance. That's one way of looking at it. And I think in some cases that is what is happening. I think in the case you mentioned, I personally would just say, look, the guy by his own action is putting his fellow neighbors into a position where they have no choice but to make a split second decision. And if anyone is his fault for putting them in that area of uncertainty, OK, so then we have to say, well, then, what was communicated, if anything was communicated? I would say that there is actual consent. And even if the guy later says, look, I don't want to ever be rescued, I'm a 1% minority outlier or a 1 out of a million outlier, I think we say, well, you're just wrong. You did consent. If you don't want to consent, you need to have some kind of special clothing that do not or secitate type idea. Now again, this might be correct in a sense that indeed by walking in front of a bus, you have put your fellow humans in an awkward legal and moral circumstance. However, I think, again, it implies that the non-aggression principle is a rule of thumb and it's not some absolute thing. Because now he's saying, well, just by virtue of existing, you have consented that other people can put their hands on you if they're trying to save you, even though you've never done that explicitly. And if you disagree with that principle, you now have the obligation to wear some kind of a shirt or notarize everybody to say, hey, look, I'm one of those weird people that I don't want to be resuscitated. I don't want to be safe in the buses. If a piano is dropping, don't shove me out of the way. But where does that come from? That sounds like a positive legal application to me. And now we have to seek out justification for why exactly it's the case that indeed you have a responsibility to signal to other people how much of a social contract you're agreeing to and how much you're disagreeing to. And another issue with this is once you start going down the line, I mean, I would say we're talking about exceptions here. Once you start going down this road, there's all kinds of continuums and gray edge cases that are gonna keep cropping up. Which isn't a problem for a theory which treats the non-aggression principle as a fantastic grill of thumb, but I think it is a problem if you want to treat it as something that's absolute. Now, I did add something I thought which is a really good point here. And by the way, this all also, we never specify whether the property is public or private when we talk about these things. Sort of like we imagine this sort of, this ghostly realm of a non-vaguely specified walking ground that's, you know, they're missed everywhere and no one owns it. You're just happy to bump into it. But in reality, you're always, especially in the Libertarian Society, you're always in a private property setting. So either you're on his property or he's on your property or you're on the shopping mall's property. And there are already some rules laid down for this kind of behavior if only implicit rules. So really the resort might be to the rules of the property owner. Now, this idea I think has a lot of legs because it's true in conversations with people we're talking about legal theory. It's often not specified who's property that we're on. And I think private property ownership solves a whole bunch of problems in political theory in general. There's a whole host of issues that are caused by the existence of public property in the first place. That if we just privatize property, I think lots of things get resolved. But there's still a question of what a geographic locations set of legal norms are. So it may be that on my property I have some slightly different rules on your property, you have some slightly different rules. But it's most likely that the societies that would emerge in a kind of Libertarian system would agree on some basics. I think we're getting at the basics. So say we're talking about two store owners' properties in our Libertarian paradise. Store A and the property of store A is owned by somebody that's a non-aggression principle absolutist. And he's got all the legal rules that we're talking about in this interview. Property B is somebody like me, a non-aggression principle enthusiast with exceptions. The question is which land do you think has a better system of rules? Is it that which says hey, you now have a true legal obligation for saving somebody from the bus that was going to hit them, even if it's a small chance that somebody will sue you over it, they still could. Or is it a superior legal system to say no, you were trying to save somebody in an emergency circumstance, we have a different set of rules that apply in emergencies. In my evaluation, I got a side with property owner B. Now don't get me wrong, I'm not saying that I think it should be illegal for a property owner to have his specific set of rules on his land. So I'm not saying that the non-aggression absolutists shouldn't be allowed to set up such a legal system, right? This would be a consistent libertarian position is to say hey, you can set up whatever rules you like on your property. I'll set up whatever rules I like on my property. Businesses will set up whatever rules they like on their property and we're gonna have some kind of norms that will emerge out of that system. We can still have, I think, smooth functioning through different legal systems, just like we do when people engage in international trade. Trading across borders means you're gonna be using different legal rules and yet the system works out because people have a mutual interest to agree on a particular set of rules. This is kind of a side point, but it's really interesting, the idea of competing legal systems. I think just like we should have competition in the production of shoes, I do think we should have competition in the production of law. And if in some world, people are able to make their own legal libertarian systems or authoritarian systems or whatever it is, I think I would be most attracted to that which says not aggression principle, 99% of the time with some exceptions. So if we were to take that line of reasoning though, couldn't you see in a line of argument that said, oh, I groped you inappropriately because I assumed that you were consenting based on your behavior or something like that. Doesn't that kind of open up the door to all kinds of claims of assuming consent? It does, but I think that's why the law is the sort of the art of actually making concrete decisions about concrete cases by applying rules to them. And you have to take into account the dangers of having just a rule that could lead to a slippery slope. So for example, in the common law, and I think most libertarians would agree, that you don't have to respond to, you don't have to wait for someone to physically attack you before you respond. If someone is in a context where they've indicated they want to shoot you and they raise their weapon and they cock the trigger and it looks like they're about to pull the trigger and they had every intention of doing so as far as you can tell, then you don't have to wait for the bullet to start heading your way. You can raise your gun and shoot them first. That's preemptive, right, preemptive force. But the common law has drawn a very strict set of criteria around when you can actually say it has to be an immediate direct force, something that the reasonable everyday man would interpret that way, et cetera, et cetera, right? Like if the guy's a raving lunatic or he's got a red tip on a plastic pistol where you should've known, then you wouldn't be... So these are, they do require judgment of the jury or the community or the judge. And over time, these standards do develop and people start adjusting their behavior to be guided by them. So once again, I agree in practice that we have systems and common law that are to deal with these kind of edge cases. But again, it seems like that challenges the notion of the absolutism of non-aggression principle. When we say, well, you can have a preemptive strike. Somebody's raising their gun at you. You're justified in shooting them before they shoot you. But what if the gun has a plastic tip on it? Well, then now you're no longer justified in doing that. But what if somebody is colorblind? They didn't know it was a plastic tip. Well, now are you justified? Well, what if somebody did know it was an orange tip gun but they just read a news article of a malicious criminal who's shooting people with an orange tip gun and he thought, oh man, I thought that was the guy, so he shot him instead? Now, if you think there's some clear cut answer here, I think you're gonna be disappointed. There's all kinds of crazy, blurry cases that we can come up with that to say, oh, this person's clearly an aggressor. This person's clearly not an aggressor. I don't think it works out. Now, then again, you could say something like this. The non-aggression principle is clear. It's absolute. Don't initiate force against a non-aggressor. But where all the ambiguity comes into play is not in that principle. It's in interpreting what is an aggressor? What is force? What is a non-aggressor? Does this person qualify as an aggressor or a non-aggressor? And that's where all the blurriness is. One way or another, I think we have to give up the notion that the non-aggression principle is just this simple thing that's clear cut and absolute because you gotta have discussions in crazy circumstances where somebody forcibly shoves somebody else because they think a bus is gonna hit them, but they didn't know that the bus was actually gonna stop at the red light and not hit them. Do they qualify as an aggressor or not? If the criteria for determining who an aggressor is is the application of force against somebody that has not consented, well, that fails. You have exceptions to that rule. Unless, of course, you wanna say, well, you see it's not actually physical force. When you shove somebody out of the way under these particular circumstances, now we're saying that doesn't qualify as force. That's some other just transmission of physical energy, but it just kind of keeps kicking the can down the road, I think. Perfect absolute black and white rules in law, I think is pretty much impossible to find. In those circumstances, it doesn't seem like when it's clear cut, it seems like the rule is something that emerges or it's something, we're talking about a reasonable man, that, I think that's correct, but it lacks the kind of argumentative power of saying this is the black and white rule. It does. If that's true in those circumstances, why couldn't somebody just say, well, that's true of all law? All law is all property rights and rules are just kind of communally agreed to. Well, that's a whole different issue, getting into the social contract and those kinds of issues. And I would do two things here. Number one, I would say, well, Randy Barnett in his book, The Structure of Liberty, he talks about this. He's an anarchist, libertarian scholar, and what he tries to do is say that he distinguishes between abstract rules and legal precepts. Now, abstract rules are these things we would come up with from our armchair, or at least we would sort of refine them deductively after seeing inductively many cases over the centuries and we sort of get rid of the inconsistencies and formalize and codify it. But when you have to apply them to particular cases, that's more of a concrete case and you have to have judges and all these people take the facts into account. But the point is, compare this to any other system. I mean, any system, whether it's socialist or welfare status or democratic, any type of political legal system is going to have to deal with borderline cases, continuum issues, and just because those exist in life and just because libertarianism doesn't have a deductive answer, you can answer always from your armchair, doesn't mean it's an inferior theory because every theory has these issues. You could have a dictator, a furor, just decide everything. It would be totally black and white. Just come to him and he'll give the answer. A wins, B wins, C wins, D wins, that's it. I mean, you would know who the owner is and who the winner is. It would be bright, bright line, we would call it, but it wouldn't be just. Or wouldn't, you have another reason to think it's just. Now I felt like that was a bit of a dodge because my point is to say, hey, if you're saying we've got these kind of communally agreed to rules that emerge out of common law, that sounds like we're saying, okay, the non-aggression principle isn't 100% absolute. We have other principles that we use to judge what should be just and unjust, legal or illegal. And his response was to say, okay, yeah, but that's no criticism of libertarian legal systems because all legal systems are gonna have this problem. The socialist legal system doesn't solve these problems. And I agree with them. The socialism doesn't solve these problems. And I agree that, yeah, all legal systems will have these edge cases, but my point is directed at this idea of founding the legal system on the inviolable principle of non-aggression. My point has nothing to do with libertarian systems in general or how they compare to socialism. Now that's where a conversation about the non-aggression principle ended. I'll just say a couple more things on the subject. I said earlier that I'm not claiming there are no absolute principles here. I'm just saying that I don't think the NAP is the absolute principle. So you might ask, well, what could a more fundamental principle be that might lay underneath the non-aggression principle? Well, I'll give you my answer, but you're not gonna like it. This is where I invoke my own personal ethical beliefs. I think that the absolute rule that has no exception is that you are always correct and justified when acting out of love. Now think about how that principle might lay underneath legal theory. So when we're talking about pushing somebody out of the way because they're standing in front of a bus, that physical force would be justified because you'd be acting out of love to save somebody from a spontaneous death. The same goes with all so-called lifeboat circumstances or emergency circumstances. It just so happens that the principle of love and the principle of non-aggression line up for 98% of circumstances. In almost all circumstances, when you act out of love, you're not gonna be forcibly aggressing against somebody. You're not gonna be putting your hands on them. You're not gonna be using physical force or threats of physical force on them. Now to that absolute principle, I can find no exceptions. I think that is the principle that kind of gives me to all the other principles. Now I said, you're not gonna like it. Maybe you do. Maybe if you have some religious beliefs, you think that's nice. But I know a lot of people who have a very skeptical mindset. I share a very skeptical mindset. Who might say, and that sounds like a bunch of fluff because after all, how do you determine when somebody's acting out of love and when they're not? It's a really sticky question I don't have an answer for. But I'm just talking about justification for individual behavior. If it can be proved that somebody was genuinely acting out of love, I think that should have some legal say in my ideal legal system. Now, let me give you one more example just to illustrate why this might have some meat to it. Let's say there's somebody who has a physical and mental handicap and they shake their arms. They can't control shaking their arms. It just so happens that they have a knife, let's say for some reason they took a knife out of the cupboard and then their arms start shaking. And totally accidentally to no fault of their own, they happen to stab somebody nearby. Should they be legally liable for that stabbing? Well, I would say it's really difficult. It's not so straightforward. And I think it depends on the degree of the severity of their mental handicap. So the intention, the intention of the person doing the action has some really central importance to law. Why intention is so important in my worldview is because it's got this connection to love. One more example. Let's say that somebody bakes a pie for a five year old neighbor's birthday and they bake them a wonderful pecan pie because they're from down south and it turns out unbeknownst to anybody that that kid had a pecan allergy. So he eats the pie and he dies. Well, is the person who bakes the pie guilty of manslaughter because they accidentally killed somebody because they baked him a pie for the birthday? Now, if the only metric you have for determining legality is the non-aggression principle, I don't think you're gonna get the ideal answer. I think in that circumstance, I want an exception to the rule. I could see a case to say, hey, look, I baked the pie for the person. Nobody stopped me. It was of the best intention. I didn't know the kid had a pecan allergy. I can't afford paying restitution to the family. I think that talking about intention and acting out of love should be important when we're talking about legal systems. Contrast this to somebody that knows that the five year old has a pecan allergy, still bakes them the pie and kills the kid while now that person, of course, would be legally and morally liable. Now, I recognize that this has its own slippery slope and it's got its own ambiguities because again, how do you know the intention of somebody? Now, I don't have clear answers, but I get to say, because I'm not drawing an absolute legal boundary, I get to say, hey, juries and judges should take into account more than the non-aggression principle. They should take into account intention, love. Is justice actually served when the baker of a pecan pie accidentally kills a five year old that happens to have pecan allergies? Is justice actually served when that person has to pay up? Or is justice served by saying no, that was a reasonable accident that you couldn't have known the outcome and therefore you get some kind of exception? This also depends on kind of which person you're talking about justice being served, right? If it's justice to the family, justice to the individual that baked the pie. I can just speak from my own perspective. I want to be in a legal system that says, hey, when we open the book for gray areas in weird circumstances, things aren't black and white and we're gonna take everything on a case-by-case basis. But if you think I'm totally full of it and you like what Stephan Kinsella had to say, you didn't like what he had to say, whatever your perspective, make sure to go to YouTube if you're not already there and leave a comment, let's have a conversation about it. It's a really interesting topic and if you enjoyed listening to it, go over to iTunes, leave a rating and a review for Patterson in pursuit. I'd really appreciate it. It helps the show and it helps these ideas get disseminated further. All right, that's all for me this week. Make sure to tune in for the next couple of weeks because I've got some fantastic interviews lined up. Have a good one.