Despite its elegant simplicity, the libertarian law is difficult to grasp. This I realized pursuant to the publication of “Eric Garner: 100% Innocent under Libertarian Law.” Some of the smartest, polymathic readers a writer could hope for were easily bullied into believing that by failing, first, to submit to the sovereign and question Him later—Eric Garner had undermined some sacred social compact.
A small-time peddler is killed-by-cop for selling single smokes on a New York street corner. Yet so befuddled were readers over the application of libertarian natural law to the Garner case, that they insisted against all evidence that Garner’s was an understandable death by “civil disobedience.” “I certainly would applaud those who resist truly immoral laws (like ordering someone to commit torture),” equivocated one writer, “but I am leery to suggest massive civil disobedience of petty regulations which may, in fact, just give rise to more oppressive government to ‘restore law and order.'”
Yes, the poor sod who dared to purchase and dispose of a couple of loose smokes had committed “massive civil disobedience.” Fearing the Sovereign’s vengeance, some of his fellow citizens felt obliged to calibrate just how daringly Garner should have deviated. Did he raise his voice excessively? Did he wave his arms too energetically? All utilitarian, not principled, considerations.
Other readers beat on breast. Hopelessly “torn” were they between my verdict—Garner was an innocent actor in the sovereign’s snuff film—and the proposition that Garner had an obligation to prostrate himself before the law to his overlord’s exacting specifications. By failing to do so, Garner had somehow invited his fate.
“Torn” is a word that better comports with images of Gloria Swanson or Marlene Dietrich mid-swoon. What in bloody blue blazes is there to be “torn” over? The right of a man to stand on the curb with a few “loosies” in-hand, and stay alive?
In claiming that Garner was innocent in natural law, I was—or so I was informed—guilty of implying that he had no moral obligation to obey state-enacted positive law. Woe is me—and woe betides that rascal who counseled that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
Here’s the rub about the rudiments of libertarian law. While we all have ideas about what is moral and what’s immoral, libertarianism doesn’t! It has nothing whatsoever to say about morality per se. When libertarians say this or the other is wrong in libertarian law, they mean the following and the following only:
Unprovoked, A initiated aggression against B or his “legitimately owned” property. That’s it!
Libertarianism is thus concerned with the ethics of the use of force. This and this alone is the ambit of libertarian law.
The foundation of libertarianism is the non-aggression axiom. “The non-aggression axiom is the lynchpin of the philosophy of libertarianism,” explains Walter Block:
It states, simply, that it shall be legal for anyone to do anything he wants, provided only that he not initiate (or threaten) violence against the person or legitimately owned property of another. That is, in the free society, one has the right to manufacture, buy or sell any good or service at any mutually agreeable terms. Thus, there would be no victimless crime prohibitions, price controls, government regulation of the economy, etc.
The concept was unremarkable among 19th century classical liberals, who were Russell Kirk conservatives by any other name. Nowhere was the self-evident nature of natural law more evident than in the matter of Eric garner. According to a “nationwide USA TODAY/Pew Research Center poll,” “Americans by nearly 3-1” agree the police officer was responsible for the death of Eric Garner.
What is immoral is not necessary illegal and vice versa. It is, arguably, immoral to legislate preferences in employment for certain employees, based on the concentration of melanin in their skin. Yet racial set-asides are perfectly legal in some precincts around the country. Conversely, it is utterly moral to sell an item that belongs to you, as Garner did. However, it was illegal for Garner to sell said items, even though he was in his moral right to trade.
Naturally, there are very many difficult moral issues over which natural-rights libertarians—as opposed to Benthamite, utilitarian libertarians—will argue. Abortion, for example. Based on the non-aggression law, some libertarians hold that abortion is legal in libertarian law, because a woman owns herself and may evict anything from her body. To punish her for exercising dominion over her own body, they claim, would be wrong—even if we think abortion immoral. Other natural-rights libertarians disagree with this position. They say that abortion is aggression against a living, non-aggressive, sentient being.
The debate is mired in morality. But it always returns to what should be legal or illegal in a truly free society: Based on the non-aggression law, should we or should we not proceed with force—for that is what law is—against a woman for what she does to her body.
Law is force. Every time our overlords in DC legislate (unconstitutionally, for the most), they grant their gendarmes permission to aggress against an innocent citizen who’s been criminalized. Every new law and regulation licenses law enforcement to initiate mostly unjust, unprovoked force against an innocent, sovereign individual and/or his lawful property—an individual who has done harm to no one.
Competition in a free society is not aggression. “Eric Garner was not violating anyone’s rights or harming anyone by standing on a street corner and peddling his wares.” The shopkeeper who sicced the cops on Garner had the right to pursue profits. He has no right to the profits he had before the competition arrived on the scene. Not in a free-market.
Ultimately, libertarianism’s elegant minimalism as to what is lawful and what’s unlawful comports with the American idea of individual sovereignty, subject to limited, legitimate authority.