Property, Freedom & Society

17 Toward a Libertarian Theory of Guilt & Punishment for the Crime of Statism

Walter Block

This paper is an attempt to combine the insights of Van Creveld concerning statism1 with libertarian theory in order to forge a theory of justified punishment for the crime of engaging in statist, governmental, or other gangster activity.

GOVERNMENT VS. STATE

Van Creveld begins his analysis by distinguishing between governments and states. In his view:

The state . . . is an abstract entity which can be neither seen, nor heard, nor touched. This entity is not identical with either the rulers or the ruled; neither President Clinton, nor citizen Smith, nor even an assembly of all the citizens acting in common can claim that they are the state. On the other hand, it includes them both and claims to stand over them both.2

The hallmark of the state, for Van Creveld, is its impersonality. There is no one individual who can be clearly be described, distinctly, as a member of the state. On the other hand, it is possible to claim that everyone living within a certain location is a member of the state. He goes so far as to liken this institution to a

corporation in the sense that it possesses a legal persona of its own, which means that it has rights and duties and may engage in various activities as if it were a real flesh and blood, living individual.3

But if the state is a corporation, it is distinguished from all other such, typically in two ways: it claims the right to initiate violence within a given geographical area (e.g., taxation), and demands a territorial monopoly in this regard (e.g., it will not tolerate the operation of any other state within “its” area). Van Creveld puts the matter in this way:

the state differs from other corporations . . . first, [in] the fact that it authorizes them all but is itself authorized (recognized) solely by others of its kind; secondly, that certain functions (known collectively as the attributes of sovereignty) are reserved for it alone; and, thirdly, that it exercises those functions over a certain territory inside which its jurisdiction is both exclusive and all embracing.4

In sharp contrast, a government is an entity that, although it typically serves the same function as a state, consists of specific identifiable persons. Here, there is a clear line of demarcation, in any geographical area, between the rulers, who are part of the government, and the ruled, who are not.

According to Van Creveld:

government and state are emphatically not the same. The former is a person or group which makes peace, wages war, enacts laws, exercises justice, raises revenue, determines the currency, and looks after internal security on behalf of society as a whole, all the while attempting to provide a focus for people’s loyalty and, perhaps, a modicum of welfare as well. The latter is merely one of the forms which, historically speaking, the organization of government has assumed.5

Van Creveld further divides the government into various types, including tribes with rulers (chiefdoms), city-states, and empires.6 To preview our findings, we shall maintain that while fomenting states and governments are equally criminal acts under the legal code of libertarianism, the distinction between them is still a highly useful one, in that the former presents far more analytic difficulties than the latter.

WHAT IS LIBERTARIANISM?

Libertarianism is the philosophy that maintains it is illicit to threaten or initiate violence against a person or his legitimately owned property.7 Defensive force may be used to ward off an attacker, but invasions of person or property are strictly prohibited by the non-aggression axiom.

Given that both the state and government can be defined as a monopoly of legitimated violence within a given geographical area, it may then be fairly said that any such entity, which admits of rulers and ruled, whether private gang, government or state, necessarily violates the libertarian axiom of non-aggression.

Can it reasonably be objected that ruling entities, whether states or governments, are really embodiments of voluntary agreements between consenting adults, since they are based on constitutions?8 Unfortunately for the supporters of dirigisme, such a contention cannot be maintained. Philosophers such as Spooner, Rothbard, and Hoppe have put paid to all such claims.9

If it is illicit to invade the person or property of another, what should be the appropriate response from the forces of law and order?10 It is a combination of making the victim “whole” again, and punishing the aggressor.11 What this amounts to, in effect, is “two teeth for a tooth” plus costs of capturing and scaring.12 Consider the following scenario: A steals a car from B. A is now captured. What is the just punishment that will restore B, as much as possible, to his previous non-victimization state? First, the automobile must be returned from the carjacker to its rightful owner. That is the first “tooth.” Then, what A did to B must be, instead, done to A, on B’s behalf, by the forces of law and order. Since A relieved B of a car, and took it for himself, the same must now be done to A; that is, A’s own car (not the one he just stole from B which has already been returned to B as the first tooth) must be given to B.13 This is the “second tooth.”14 But more is needed if the scales of justice are to be once again righted. When A engaged in his act of car jacking, B was ordered, at the point of a gun, to exit from the automobile, and turn it over to A. B, reasonably enough, feared for his very life, not knowing whether or not compliance with A’s orders would be sufficient to save himself. If all we do, now, is blithely turn two cars over to B from A, we will still be a long way from bringing matters to a just conclusion. Since A scared B, we must scare A, twice as much, if anything. Accordingly, to the “two teeth” penalty already imposed upon A, we additionally scare him. How can this be done? One reasonable option is to force him to play Russian roulette with himself, with the number of bullets and chambers to be determined by the severity of the crime perpetrated upon B by A. When we add to this a reasonable amount for the costs of capturing A,15 our story in this regard is complete.

APPLYING LIBERTARIAN PUNISHMENT THEORY TO POLITICAL RULERS

In those branches of athletics that have as their goal the movement of a spherical object such as golf, handball, racketball, baseball, softball, and soccer, the road to success is to “keep your eye on the ball.” He who fails to do so, for even the slightest moment, cannot do as well as otherwise he might. A necessary condition for orchestral playing is to either memorize the notes—and their time value—or to keep your eyes glued to the musical score. Even a momentary lapse in this regard is almost a guarantee of less productivity than otherwise, if not outright failure. There are, to be sure, distractions; these account for failure to a great degree. But the high road to success is to strive to the utmost to focus on what you are doing.

It is the same with our present concerns. Only here, instead of a ball or musical notes, the aphorism of keeping your eye on the ball applies to the non-aggression axiom—and its applicability to those responsible for creating and running states and governments.The aim of the present paper is to apply the libertarian nonaggression axiom and punishment theory to the activities of the state. It is of the utmost importance that we act consistently with the basic building block of this philosophy, since the distractions will be numerous and powerful; allowing them to deter us from an accurate analysis will almost guarantee erroneous conclusions.

The “distractions” are so numerous and deeply embedded in our societal mores that even I, the author of this paper, feel a certain reluctance to overcome them. For one thing, politicians are the leaders of our present society. To contemplate incarcerating them, particularly en masse, is more than sufficient to make the most hardy intellect blanch.16 But facts are facts, and we cannot take our eye off of the “ball” if we are to shed any sort of social scientific light on the problems to which we are addressing ourselves: given that governments are illicit invasive criminal institutions, and that people who aggress are justifiably punished, we must contemplate retribution, on a massive scale, against all those responsible.

JUST HOW MASSIVE?

But just how all-encompassing must be our vision? Suppose we were to contemplate a Nuremberg type trial for Cuba and North Korea. Would all inhabitants of these unhappy countries, without exception, be candidates for a jail sentence (or worse)? This, indeed, would be precisely the conclusion reached by what I would consider a rather unsympathetic interpretation of Van Creveld, along with the premises of libertarian punishment theory as we have adumbrated them. Specifically, this author has stated: “neither President Clinton, nor citizen Smith, nor even an assembly of all the citizens acting in common can claim that they are the state. On the other hand, it includes them both and claims to stand over them both.”17 The point is, if both Smith and Clinton are the state, and the latter is guilty of criminal behavior on this ground, then so must this apply to the former. But it would be a strange Nuremberg trial that found guilty the entire populace of Cuba; this would mean that there were no victims in that unhappy island country, only victimizers, a manifest impossibility, since the latter implies the existence of the former. From this we deduce that there must be at least one victim in Cuba. Further, it is only a particularly unsympathetic reading of Van Creveld to assume, on the basis of his analysis, that both Idi Amin and any one of his many victims would be not only guilty of political crimes, but equally guilty.

If it is not and cannot be the case that “we are all guilty” of statism, then it logically follows that some are culpable, and some are not. Let us consider a few candidates for the criterion separating the blameworthy from the innocent.

First, you are guilty of being part and parcel of government if you are employed by it, and not if not. This sounds like a good initial stab at making the distinction, but it is not. For one thing, virtually everyone in Cuba, North Korea, the USSR, East Germany either works or has worked for the state. Thus, this criterion would tend to collapse into the one which claims “we are all guilty,” which has already been rejected. For another, surely there are people who are not formally employees of government, and yet who are guilty of statism to a great degree. Krupp and Messerschmit spring readily to mind in the Nazi era; Armand Hammer was an American businessman who cooperated with and effectively promoted Stalinism. Thus this criterion is both under- and over-inclusive.

Now consider a country where it is almost entirely a matter of choice, not physical necessity, to take a government job, for example, the U.S.18 Use of the employment contract would condemn to criminality virtually every post office worker, teacher, professor,19 social worker, street sweeper, garbage man, welfare recipient, toll booth collector, road repairman, and so on.20 Again, we come perilously close to lapsing back into the “we are all guilty” scenario. Worse, no cognizance is taken of the distinction between a Marxist or leftist professor who supports totalitarianism, and those who oppose it.

Of course, it can be argued that even the libertarian professor or politician21 who accepts a salary from government is still guilty of receiving what, by his lights, can only be considered stolen (e.g., taxed) property. And this cannot be denied. However, there are several replies open to the libertarian professor employed by a state school. First, there is the claim that he is only getting some of his own money back from the government, and not that of other people. Second, it is not exactly theft to take from a thief;22 rather, such an act is best characterized as relieving a criminal of his ill-gotten gains. So, even if a post office worker takes a salary from the government, this does not mean he is guilty of a libertarian legal code violation; far better that he, a non-thief, now has this money than that the government,23 which stole it in the first place, gets to keep it. Ragnar Danneskjold, a fictional hero in Ayn Rand’s Atlas Shrugged, made a career out of liberating (not stealing!) government property and returning it to its rightful owners.24 This was a two stage act: first, taking money from the state, and second, giving it back to those from whom the state had stolen it from in the first place. If this complex act, consisting of two separate parts, was a righteous one, then each and every part of it, too, had to be licit; there cannot be a totally legitimate act one part of which is improper. But this means that not only returning stolen money to rightful owners should be lawful, but also taking it away from those with no valid title to it.25

Of course, the libertarian college professor who does not wish to open himself up to the charge of hypocrisy is subject to the “attack” on the part of taxpayers who may approach him and demand that he return to them those parts of their salary which cannot be accounted for on the grounds of him merely getting back his own (or his parents’) tax revenues. What response does he have at his disposal? He has several. First, not all of these revenues (the difference, suitably capitalized, between what was stolen from him and what he has recovered) are up for grabs to the irate taxpayer who approaches him with charges of hypocrisy; it is only this amount subtracted from a reasonable “salvage” fee. According to the law of the sea merchant,26 salvage fees amounted to one third of the value of a lost or abandoned boat. Applying this rule of thumb to our present situation, at most only two thirds of the libertarian professor’s salary is vulnerable to this charge. Second, just as Ragnar chose his own victims of the state to whom to make restitution, so is this option open to our libertarian professor employed by a government institution. He need not satisfy any and all comers. Instead, he can direct these funds to worthy groups and organizations who have been victimized by taxation. Third, the would-be claimant’s hands must also be clean in this regard. His financial records must show that he is not a ruling class member or net tax consumer in the light of Calhoun’s analysis.27 Otherwise, he will be vulnerable to a counterclaim from the very person he is “attacking.”

LIBERARTARIAN CLASS ANALYSIS

No, not all inhabitants of a geographical area are guilty of fomenting state institutions, nor are, even, all those who work for the government. The latter may constitute a presumption of political criminality, but this can be defeated, as we have seen. A better candidate for guilt and punishment emanates from libertarian class analysis.

This contention may be rejected out of hand by men of good will and good sense, because the Marxists have long polluted the concept with their own version of it. That is, in the more well-known Marxian class analysis, employers are guilty of exploitation, and employees are their victims.28 But just because one version of class analysis is intellectually bankrupt does not mean that all others are. In the libertarian account, the distinction is, as might be imagined, between those who either directly or indirectly engage in violent attacks on innocent people, and those who do not.29

The state is of course the most well-organized group of exploiters of the innocent, but there are also non-governmental criminals, gangsters, etc., who must be included in the ruling class. Every car-jacker, every two bit thief, every perpetrator of fraud, every perpetrator of rape, assault and battery or murder, is, along with organizers and top managers of both government and state, a member of the ruling class from the libertarian perspective. As well, there are the aiders and abettors of the political system: members of the business, arts, and athletic communities who help politicians and bureaucrats in their mistreatment of the rest of society.

Perhaps the analogy that best illustrates this concept is that between officers and enlisted men in the army. The former are the rulers, the latter, the ruled. A colonel or a general typically receives far better treatment than a private or a corporal.30 Who is a member of the ruling class: a welfare mother who accepts a check that would not be available to her in the free society, or the head of the Federal Reserve, an institution also incompatible with laissez-faire capitalism?31 It is clearly not the former, but rather the latter. Yes, welfare is a clear theft of the rich taxpayer, in favor of the poor tax consumer32 in this case, and is unjustified. But the single mom is more sinned against than a sinner. Put it this way: if somehow the “welfare queen” and all her ilk disappeared from the scene, the mixed economy, or socialism, would function pretty much as it has always done. On the other hand, were the politicians and top bureaucrats to decamp, and not be replicated, we would be well on our way toward the free society.

 

                             

Walter Block (WalterBlock.com; wblock@loyno.edu), a long time friend and admirer of Hans Hoppe, is Harold E. Wirth Endowed Chair and Professor of Economics, College of Business, Loyola University New Orleans and a Senior Fellow of the Ludwig von Mises Institute.

33Martin Van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999).

34Ibid., p. 1.

35Ibid.

36Ibid.

37Ibid., p. 415.

38Ibid., p. 2. He actually includes a fourth category “tribes without rulers” but we ignore this possibility on the ground that it cannot be reconciled with our own view that all governments necessarily initiate (legally legitimate) violence against their citizens, and demand a monopoly role in this regard.

39See on this Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, N.J.: Humanities Press, 1982); Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Boston-Dordrecht-London: Kluwer, 1989); idem, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer, 1993); John Locke, An Essay Concerning the True Origin, Extent and End of Civil Government, V, pp. 27–28, in Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960).

40This is the position of the Public Choice School. See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan, 1962). For criticism, see Murray N. Rothbard, “Buchanan and Tullock’s The Calculus of Consent,” The Logic of Action II (Glos, U.K.: Edward Elgar Publishing, 1997), pp. 269–74; Walter Block & Thomas J. DiLorenzo, “Constitutional Economics and the Calculus of Consent,” Journal of Libertarian Studies 15, no. 3 (Summer 2001): 37–56; idem, “Is Voluntary Government Possible? A Critique of Constitutional Economics,” Journal of Institutional and Theoretical Economics 156, no. 4 (December 2000): 567–82; idem, “The Calculus of Consent Revisited,” Public Finance and Management 1, no. 3 (2001).

41See Lysander Spooner, No Treason: The Constitution of No Authority (reprint Larkspur, Colo.: Pine Tree Press, [1870] 1966); Murray N. Rothbard, “The Anatomy of the State,” Rampart Journal 1, no. 2 (Summer 1965); idem, Power and Market: Government and the Economy (Menlo Park, Calif.: Institute for Humane Studies, 1970); idem, For a New Liberty (New York: Macmillan, 1973); idem, The Ethics of Liberty; Hoppe, A Theory of Socialism and Capitalism; idem, The Economics and Ethics of Private Property. Spooner goes on to reject the claim that the government is really a voluntary organization, one agreed to on the part of its citizenry, on the ground that people do vote, pay taxes, serve in the army, and so on.

42These must of necessity be private, since public sector police violate the libertarian code of law in the first place, and can thus scarcely be relied upon to uphold it.

43On libertarian punishment theory, see Randy E. Barnett & John Hagel III, eds., Assessing the Criminal: Restitution, Retribution and the Legal Process (Cambridge, Mass.: Ballinger, 1977); Walter Block, “Radical Libertarianism: Punishment Theory for the State” (forthcoming); J. Charles King, “A Rationale for Punishment,” Journal of Libertarian Studies 4, no. 2 (Spring 1980): 151–65; Stephan Kinsella, “Estoppel: A New Justification for Individual Rights,” Reason Papers no. 17 (Fall 1992): 61–74; idem, “Punishment and Proportionality: The Estoppel Approach,” Journal of Libertarian Studies 12, no. 1 (Spring 1996): 51–73; idem, “Inalienability and Punishment: A Reply to George Smith,” Journal of Libertarian Studies 14, no. 1 (Winter 1998–99): 79–93; idem, “New Rationalist Directions in Libertarian Rights Theory,” 12 no. 2 Journal of Libertarian Studies (Fall 1996): 313–26; idem, “A Libertarian Theory of Punishment and Rights,” Loyola of Los Angeles Law Review 30 (1997): 607–45; Rothbard, The Ethics of Liberty.

44See on this Block, “Radical Libertarianism”; Rothbard, The Ethics of Liberty, pp. 85–96; idem, For a New Liberty, p. 97.

45If A does not have his own vehicle of equivalent value, then its value can be taken out of A’s hide: that is, instead of putting A in a jail at B’s (and all other taxpayers’) expense, where he can spend his days in front of a color television, in cozy air conditioned circumstances, A will in effect be enslaved until he earns enough money to pay his debt to B. Our experience of this “curious institution” shows that private concerns are able to “sweat” more value out of their charges than the costs of feeding and guarding them. See Jeffrey Hummel, Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (LaSalle, Ill.: Open Court, 1996); Mark Thornton, “Slavery, Profitability and the Market Process,” Review of Austrian Economics 7, no. 2 (1994): 21–47; Robert W. Fogel & Stanley L. Engerman, Time on the Cross: The Economics of American Negro Slavery (Ann Arbor: University of Michigan Press, 1974). So would it be, nowadays, under fully private (slave) prisons.

46Note that we are not talking about 1.9 “teeth” or 2.1 “teeth” or any other amount of “teeth.” Justice amounts to exactly twice what the bible recommended since we first return the stolen car, and then add on a second car as punishment.

47If A presents himself at the police station with a voluntary confession, this aspect of his punishment will be minimized.

48It is also undoubtedly illegal to contemplate any such activity. Accordingly, I hereby restrict the coverage of this discussion to the two political entities most people would agree are currently rogue states, or illegitimate governments, those of North Korea and Cuba, as of the time of the present writing (2008). Political entities operating in the past which fall into this category include the USSR, any of the countries of Eastern Europe until the fall of communism in that part of the world, Nazi Germany, Fascist Italy, Chile under Salvatore Allende, and Uganda under Idi Amin.

49Van Creveld, The Rise and Decline of the State, p. 1. Again, let it be repeated, we are not in this paper contemplating punishing any such person as William Clinton for the crime of being the President of the United States. Rather, if we are to make use of this example, we are implicitly discussing the president or dictator of a country such as Cuba or North Korea.

50Let it be repeated once again that we are not considering the U.S., or any of the other western democracies as examples of countries that, if it is concluded that a person is part of the state apparatus, then he is guilty of violating the libertarian code of non-aggression, and is thus a subject fit for punishment.

51In the interests of full disclosure, I must note that I was previously employed by the University of Central Arkansas, a public institution of higher learning.

52This is somewhat of an exaggeration since some of these jobs have been privatized.

53Ron Paul is perhaps best known person in this latter category. Throughout his long career in the House of Representatives, he has served as a lone beacon for freedom.

54Actually, it is logically impossible to steal from a thief; one can only steal from the rightful owner, which, manifestly, the robber is not. An analogous situation occurs with regard to money. It is only possible to counterfeit legitimate money, not money which is already counterfeited, such as Cuban or North Korean money. On this see Walter Block, Defending the Undefendable (New York: Fox and Wilkes, [1976] 1991), pp. 109–20; Van Creveld, The Rise and Decline of the State, pp. 224–29.

55Remember, we are still talking here about the North Korean or Cuban government.

56Ayn Rand, Atlas Shrugged (New York: Random House, 1957).

57E.g., the government of North Korea, or the fictional country of the U.S. in Rand’s Atlas Shrugged.

58See “Marine Salvage Information For Recreational Boaters” (available at www.safesea.com/boating_info/salvage/salvage_main.html, accessed Nov. 19, 2008); “Salvage Law” (available at http://rms-republic.com/sal00.html, accessed Nov. 19, 2008).

59John C. Calhoun, A Disquisition on Government (New York: Liberal Arts Press, 1953), pp. 16–18.

60For a refutation of this doctrine, see Eugen von Böhm-Bawerk, Capital and Interest, George D. Hunke & Hans F. Sennholz, trans. (South Holland, Ill.: Libertarian Press, [1884] 1959), particularly part I, chapter XII, “Exploitation Theory of Socialism-Communism.”

61On libertarian ruling class theory see Rothbard, The Ethics of Liberty, pp. 176–77.

62See Van Creveld, The Rise and Decline of the State, p. 161, on the different treatment accorded officers and enlisted men captured in war.

63It should not be forgotten that in this and other examples, we are discussing the Cuban or North Korean equivalents; e.g., the head of the central bank of those countries.

64Calhoun, A Disquisition on Government, pp. 16–18.

• 1Professors Hoppe’s publications, including links to translations and a detailed bibliography, are available at his website, www.hanshoppe.com.
• 2“Hans-Hermann Hoppe: Potret Intelektual Anti-Intelektual” [“Interview with Hans-Hermann Hoppe, an Anti-Intellectual Intellectual”], interview by Sukasah Syahdan, Akal dan Kehendak (Indonesia) (Apr. 28, 2008) (English translation available at www.hanshoppe.com/publications).
• 3“Principles of the Property and Freedom Society,” available at www.propertyandfreedom.org (quoting the Opening Declaration from the Inaugural Meeting: Bodrum, Turkey, May 2006).
• 4Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Boston: Kluwer Academic Publishers, 1989), chs. 2 & 7; idem, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy, 2nd ed. (Auburn, Ala.: Ludwig von Mises Institute, 2006 [1993]), chs. 11–13, 15, and “Appendix: Four Critical Replies.”
• 5Idem, Democracy.
• 6Idem, “Government and the Private Production of Defense,” in idem, ed., The Myth of National Defense: Essays on the Theory and History of Security Production (Auburn, Ala.: Ludwig von Mises Institute, 2003).
• 7On immigration, see Hans-Hermann Hoppe, “The Case for Free Trade and Restricted Immigration,” Journal of Libertarian Studies 13, no. 2 (Summer 1998): 221–33; idem, “Natural Order, the State, and the Immigration Problem,” Journal of Libertarian Studies 16, no. 1 (Winter 2002): 75–97.
• 8Idem, “On Time Preference, Government, and the Process of De-Civilization,” p. 24, n. 25.
• 9Cf. Hoppe’s discussion of Robert Nozick’s “disparate or loosely jointed arguments, conjectures, puzzles, counterexamples, experiments, paradoxes, surprising turns, startling twists, intellectual flashes, and philosophical razzle-dazzle,” in “Murray N. Rothbard and the Ethics of Liberty,” Introduction to Murray N. Rothbard, The Ethics of Liberty, 2nd ed. (New York and London: New York University Press, 1998), pp. xxiv.
• 10Stephan Kinsella & Jeffrey Tucker, “The Ordeal of Hoppe,” The Free Market 26, no. 4 (April 2005).
• 11Ibid., p. 71; and Hans-Hermann Hoppe, Eigentum, Anarchie und Staat: Studien zur Theorie des Kapitalismus (Opladen: Westdeutscher Verlag, 1987).
• 12Hoppe, Democracy, p. 74; and Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer, 1993).
• 13Hoppe, Democracy, p. 71.
• 14Domenico Losurdo, Nietzsche il Ribelle Aristocratico: Biografia Intelettualle e Bilancio Critico (Turin: Bollati Boringhieri, 2002).
• 15Hans-Hermann Hoppe, Der Gott, der keiner ist, Robert Grözinger, trans. (Waltrop & Leipzig: Manuscriptum Verlagsbuchhandlung, 2003), pp. 7–8 (English translation from Hans-Hermann Hoppe, “Demokratie. Der Gott, Der Keiner Ist,” LewRockwell.com (December 5, 2003)). See also similar comments in Hoppe, Democracy, pp. x–xi; and xxiii, noting that “both Mises and Rothbard had a soft spot for democracy and tended to view the transition from monarchy to democracy as progress.”
• 16Caspar von Schrenck-Notzing, Charakterwäsche: Die Politik der amerikanischen Umerziehung in Deutschland (Graz: Ares Verlag, 2004); and Ernst von Salomon, Der Fragebogen, seventeenth ed. (Rowohlt Taschenbuch Verlag, 2007).
• 17Stephan Kinsella, “The Undeniable Morality of Capitalism [review essay of Hoppe’s The Economics and Ethics of Private Property (1993)],” St. Mary’s Law Journal 25 (1994), p. 1434.
• 18Hans-Hermann Hoppe, “Reflections on the Origin and the Stability of the State,” LewRockwell.com (June 23, 2008).
• 19Alan Pendleton Grimes, American Political Thought (New York: Holt, 1960), p. 283.
• 20Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge: Cambridge University Press, 2001), p. 64.
• 21Merle Curti, The Roots of American Loyalty (New York: Columbia University Press, 1946), p. 175.
• 22Karl Marx to Friedrich Engels, October 29th–November 17th, 1862, in Karl Marx on America and the Civil War, Saul K. Padover, ed. (New York, McGraw-Hill, 1972), p. 263.
• 23James A. Rawley, The Politics of Union: Northern Politics during the Civil War (Lincoln: University of Nebraska Press, 1980), p. 184.
• 24Abraham Lincoln to H.L. Pierce et al. (April 6th 1859), Collected Works, vol. II, p. 375.
• 25Just as an example, in the late Nineteenth century John W. Burgess offered a definition of sovereignty as an “original, absolute, unlimited, universal power over the individual subject and over all associations of subjects,” and of “the State . . . [as] the source of all titles to land and of all powers over it,” John W. Burgess, Political Science and Comparative Constitutional Law (Boston-London: Ginn, 1891), vol. I, pp. 47, 52.
• 26Fries, “Staatstheorie and the New American Science of Politics,” p. 403.
• 27Benjamin Zipursky, “Pragmatic Conceptualism,” Legal Theory 6, no. 4 (December 2000): 462.
• 28Ibid., pp. 462–23.
• 29Anthony T. Kronman, “Wealth Maximization as a Normative Principle,” Journal of Legal Studies 9, no. 2 (March 1980): 240. Despite the fact that conclusions of Kronman and Austrians in this particular normative question coincide, we shall, for the sake of fairness, not forget that his approach to criticism of Posner is heavily influenced by the neoclassical notion of economics. Kronman, for example, uses utils and without hesitation engages in an interpersonal comparison of utility. Walter Block once rightly raised this objection in his reply to Kronman. See Walter Block, “Alienability, Inalienability, Paternalism, and the Law: Reply to Kronman,” American Journal of Criminal Law 28, no. 3 (Summer 2001): 351–71.
• 30Richard A. Posner, “Utilitarianism, Economics, and Legal Theory,” Journal of Legal Studies 8, no. 1 (1979): 119.
• 31Posner, “Efficiency Norm,” p. 500.
• 32Posner, “Utilitarianism, Economics, and Legal Theory,” p. 125.
• 33Eventually, Hoppe turned into a full-blown Austrian when, in the early 1980s, he went to the United States on a prestigious Heisenberg fellowship. This time his research project concerned political philosophy, but it was again squarely built on Austrian economics. In 1986, he became Rothbard’s colleague at the University of Nevada, Las Vegas (UNLV), where he would teach for the next 21 years. After Rothbard’s untimely death in 1995, Professor Hoppe assumed a place of uncontested leadership among Austro-libertarian scholars, becoming the editor of the Journal of Libertarian Studies, a co-editor of the Review of Austrian Economics, and then a co-editor of the Quarterly Journal of Austrian Economics. Professor Hoppe, now Professor Emeritus of Economics at UNLV and Distinguished Fellow with the Ludwig von Mises Institute, also serves on on the editorial board of Libertarian Papers. In addition to authoring numerous scholarly articles, his important books include Handeln und Erkennen (1976), Kritik der Kausalwissenschaftlichen Sozialforschung (1983), Eigentum, Anarchie, und Staat (1987), A Theory of Socialism and Capitalism (1989), The Economics and Ethics of Private Property (1993, enlarged 2nd edition 2006), Democracy—The God that Failed (2001), and The Myth of National Defense (editor, 2003). His works have been translated into at least 21 languages, not counting English.
• 34Among Professor Hoppe’s many achievements we should stress in particular his brilliant critique of positivist methodology as applied to the social sciences, a new praxeological approach to political philosophy, an encompassing comparative analysis of socialism and capitalism, and a theory of secession as a means of political reform. Most importantly, in his book Democracy—The God that Failed, Professor Hoppe has delivered a profound critique of democracy, as well as an original reinterpretation of Western history in the twentieth century, both of which have stirred international debate in academia and among the wider public. Other influential works from his pen have dealt with the role of migrations within a free society, and with the role of public intellectuals in political transformation processes. Moreover, he has excelled as an historian of thought and made path-breaking contributions to other areas such as monopoly theory; the theory of public goods; the sociology of taxation; the positive methodology of the social sciences; the theory of risk; the production of security; the transformation of formerly socialist countries; and the evolution of monetary institutions and their impact on international relations. And Professor Hoppe’s work is ongoing: he is currently working on a major book project that will restate and elaborate on his previous work in the fields of epistemology and ethics—more generally, the nature of human rationality. The goal of the book is to provide “a systematic and interdisciplinary reconstruction of human history (pre-history, hunter-gatherer societies, agricultural societies, industrial societies).”
• 35for justly acquired private property, freedom of contract, freedom of association—which logically implies the right to not associate with, or to discriminate against—anyone in one’s personal and business relations—and unconditional free trade. It condemns imperialism and militarism and their fomenters, and champions peace. It rejects positivism, relativism, and egalitarianism in any form, whether of “outcome” or “opportunity,” and it has an outspoken distaste for politics and politicians.
• 36Hoppe’s axiom of private property is also of crucial importance. If you debate about ethical issues, it means that you presuppose your own right, as well as the right of other people, to debate the issue. This acceptance implies that you do respect the rights of others people involved in the debate to control their own bodies. And the conclusion is crucial: if you even begin debating what is right and what is wrong, it means that you already have acknowledged that private property is necessary and inescapable for any moral judgment. This applies even to those who try to argue against private property. The ethical ground for private property has never been so strong and deep before.
• 37There are also many other fields where Hans Hoppe has pushed the limits of political and economic science. Monarchy is not as bad as democracy, he argues. This was and still is unacceptable to many intellectuals, and most people have followed the lead of the intellectuals because they have had no good arguments to the contrary. A simple reference to the “strong hand” of a dictator was not only politically incorrect and old fashioned, but also contrary to the goals and the image of society most people actually have. Hoppe provides a clear explanation to sort through this intellectual mess. The absence of democracy in public decision-making does not necessarily mean dictatorship and the most terrible exploitation of the people. On the contrary: democracy is the system which leads to dictatorship, exploitation of others, ignorance, and vulgarity.
• 38The private provision of security is another topic which has benefitted from Hoppe’s insights. Every decent person often feels that the police are actually not providing adequate protection. But what is the alternative? Better this than nothing, or so many of those unsatisfied with government tend to conclude. An army of intellectuals is ready to help them reach this conclusion. Hoppe provides sound arguments and explains the economics of the private production of defense. No serious scholar can ignore Hoppe’s important arguments. Those who claim that there will be no security without government are simply mistaken. Now, you can direct them to Hans Hoppe’s works.
• 39Immigration, democracy, regulation—so many bad ideas abound concerning all of these issues, and Hoppe addresses them so well in his writings and speeches.
• 40Hans knows how to present an argument in a way which is very understandable, even to a man of average intellectual capacities. His examples are sometimes so unexpected and direct that they really help or even force you to rethink what you have thought about the world before. It appears very natural for him, for example, to put a footnote in a book with a short explanation why public slavery is even worse than private slavery. It does not mean that Hans tries to be simple. He is just very straightforward. He does not hesitate to criticize even free-market advocates who are not consistent in their argumentation. If you say something absurd or make flawed arguments, he usually will not hide the fact from you. Perhaps for this reason, some people even seem to be intimidated by Hans Hoppe. Understandably, it is not always pleasant to have your arguments smashed in public.
• 41Hans does not present himself as a big scholar. On the contrary, his ambition is not very great when he speaks about the role of the scholar (including himself) in society. It is not his ambition to invent some completely new theory or find a terra incognito. On the contrary, Hoppe claims that the role of a decent scholar is, first of all, to preserve what is already found, explained, and discovered. Not to waste the knowledge of the mankind, but to preserve and explain it in modern language to new generations, is to him an already ambitious task. He does it perfectly. Contrary to many of those who are happy with their ambitious and often fallacious new theories, or with “philosophical razzle-dazzle,” he is always stressing the role of his teachers and predecessors, Rothbard and Mises.
• 42Courage is another thing which goes well with Hans Hoppe’s name. Political correctness is not a good principle to hold to when you are looking for the truth, and while many people pay lip service to the importance of truth, not everyone will defend it even when his own career and name are at stake. But when liberty and the truth are at the stake, Hans Hoppe will never give up. The well-known controversy surrounding an example given about the different time preferences among different groups of people perfectly illustrates this courage.
• 43Significantly, Hans does not hold back in criticizing monarchies for doing in a quite primitive way what democratic administrations have succeeded in accomplishing with less fallout, which is monopolizing power. Like democrats, kings tried to marginalize their opposition by declaring all political authority to be a prerogative of the centralized state. Monarchical sovereignty was a prelude to democratic sovereignty, and it was based the same “original sin,” “the monopolization of the function of judge and peacemaker.” The best form of authority for Hans is, in fact, “the natural order,” one that is “[t]he natural outcome of the voluntary transactions between various private property owners” and which is “decidedly nonegalitarian, hierarchical, and elitist.” Any effort to bring this about in our democratic, late modernity is hailed as a positive step: “Thus, in addition to advocating the abdication of democracy, it is now of central strategic importance that at the same time ideological support be given to all decentralizing or even secessionist social forces.”
• 44Significantly, Hans does not hold back in criticizing monarchies for doing in a quite primitive way what democratic administrations have succeeded in accomplishing with less fallout, which is monopolizing power. Like democrats, kings tried to marginalize their opposition by declaring all political authority to be a prerogative of the centralized state. Monarchical sovereignty was a prelude to democratic sovereignty, and it was based the same “original sin,” “the monopolization of the function of judge and peacemaker.” The best form of authority for Hans is, in fact, “the natural order,” one that is “[t]he natural outcome of the voluntary transactions between various private property owners” and which is “decidedly nonegalitarian, hierarchical, and elitist.” Any effort to bring this about in our democratic, late modernity is hailed as a positive step: “Thus, in addition to advocating the abdication of democracy, it is now of central strategic importance that at the same time ideological support be given to all decentralizing or even secessionist social forces.”
• 45A question that might be raised is whether the generality of humankind would endorse the tendencies that Hans is promoting. Would democratic populations (who have ceased to be citoyens (citizens) or Staatsbürger in any meaningful sense) really want to live in the decentralized, elitist society that Hans recommends, one in which a “natural elite” possess “natural authority,” and, because of “selective mating” and the “laws of civil and genetic inheritance,” these “positions of natural authority are more likely than not passed on within a few noble families.” Why would the majority want to acknowledge these “authority persons,” who presumably would arbitrate conflicts on the basis of the social deference that others extend to them? It is hard to see why most people would accept such arrangements, as opposed to a democracy, in which the promise is made and often fulfilled of redistributing goods to the voters. The question is not whether the democratic state robs from Peter to pay Paul (it obviously does that!) but whether Hans’s “natural order” offers most people what they want. The answer is an emphatic “no” and therefore this order (which looks a bit like Friedrich Hayek’s conception of “spontaneous order”) depends for its realization on the possibility of “decentralization and secession.” Absent such a possibility, this order is in no way feasible.
• 46Two other observations may be appropriate for understanding more fully the libertarianism of the Right that Hans exemplifies. One, this libertarianism is a recognizable subspecies of what the Italian Marxist Domenico Losurdo calls “aristocratic radicalism,” which he explores in voluminous works on Friedrich Nietzsche (1844–1901). According to Losurdo, Nietzsche’s “critique of modernity” is based on his opposition to the leveling tendencies that he perceives in democracy and socialism. It was therefore perfectly consistent for Nietzsche to praise aristocratic societies, including the Indian caste system, and to advocate liberty in the Western world of his time. That is because the state, as Nietzsche understood it, was becoming an instrument of equalization; and its attack on property relations would belong to a larger effort to remove all social and gender distinctions. Nietzsche, as Losurdo points out, also disliked Christianity, because he thought the “slave morality” that pervaded this religion and the culture it nurtured rendered them ineffective against the Left. He therefore broke with classical conservatives, who had viewed established religions as bulwarks against revolution. From Nietzsche’s perspective, Christianity and the Left were related worldviews, and only a new aristocratic order, one that had shed its Christian past, could save civilization from the unfolding of the egalitarian ideal, going from democracy into socialism and feminism.
• 47“Politically incorrect” is what the rulers and in particular the victors among the rulers proclaim. The great victor of the 20th century, in particular as far as Germany is concerned, is the USA. Hence, the USA has determined the “correct” interpretation especially of recent history. Defeated Germany was not only occupied, but also reeducated. Germany’s schools and universities, under almost complete government control, and the governmentally licensed mass media, have proclaimed to this day the official American view of history and in particular of the 20th century as a triumph of good over evil.
• 48It is hard to ignore the likely connection between Hans’s detestation of the “State” in all of its modern manifestations and the use of postwar public administration in West Germany, perhaps even more than in the Communist East, to humiliate his nation. His sense of what was done to “reeducate” defeated Germans after the War, which is documented in detail in Caspar von Schrenk-Notzing’s Charakterwäsche: Die Politik der amerikanischen Umerziehung in Deutschland, has left Hans understandably skeptical about the modern democratic project. His relation as a student to Jürgen Habermas, the German thinker and publicist who more than anyone else in his country has called for a rejection of a German national identity and for the creation of a new “constitutional patriotism,” based on supposedly universal democratic values, may explain even more about Hans’s intellectual odyssey.
• 49His study at the Johann Wolfgang Goethe University with Habermas and Karl-Otto Apel was time well spent, however, as it shaped Hoppe as a first class social scientist and helped him to put forth an “argumentation ethics” defense of individual rights, based in part on the discourse ethics theories of the Frankfurt School. His intellectual independence prevented him from accepting his mentors’ apology for socialism and their anti-capitalist mentality. As one reviewer noted, “Hoppe believes his former teacher Habermas’s discourse-ethics theories, while correct at core, are applied incorrectly by Habermas to yield a socialistic ethic; Hoppe feels that Habermas’s theories, if correctly applied (as Hoppe himself does), yield the libertarian non-aggression norm.”
• 50The first and foremost task of the intellectual anti-intellectuals, then, is to counter this dogmatic slumber of the masses by offering a precise definition of the state, as I have done at the outset, and then to ask if there is not something truly remarkable, odd, strange, awkward, ridiculous, indeed ludicrous about an institution such as this. I am confident that such simple, definitional work will produce some serious doubt regarding an institution that one previously had been taken for granted.
• 51Lieber’s doctrine is “a prophetic conception,” according to Vernon Parrington, based on “the principle of an evolving state that draws all lesser sovereignties into its orbit by the law of attraction.” Parrington was well aware of the importance of Francis Lieber, who “provided a philosophical background” to the legal theory of Joseph Story. “Under the combined legal and philosophical attack the compact theory found its philosophical breastworks leveled, its natural rights theory undermined, and its commanding position effectively turned.” Alan Grimes places Lieber at the transition between “the constitutional and legal approach to an understanding of the nature of the American Union, and the rise of the organic concept of the nation.” The importance of the German professor in shaping the ideas which Lincoln exploited fully has been noticed by other historians. Lieber “had indeed argued before the war that the original Constitution was insufficient to the needs of the nation . . . in the 1830s and 1840s, he had gained prominence, North and South, by attacking the idea of a fixed Constitution.” A staunch advocate of federal growth, he thought “that federal power should expand slowly and organically—and thus constitutionally—as the nation grew. . . . He believed that the war would solidify the Union and thus fulfill his dream, nurtured during his school years in Germany, of living in a modern nation-state.” Later on, during the war Lieber became very popular, wrote dozens of articles and pamphlets in order “to popularize his distinctive brand of nationalism.” In practice, “[h]is many public statements used the South’s insurrection to justify an expansion of federal power beyond what the Constitution expressly sanctioned.”
• 52Lieber’s doctrine is “a prophetic conception,” according to Vernon Parrington, based on “the principle of an evolving state that draws all lesser sovereignties into its orbit by the law of attraction.” Parrington was well aware of the importance of Francis Lieber, who “provided a philosophical background” to the legal theory of Joseph Story. “Under the combined legal and philosophical attack the compact theory found its philosophical breastworks leveled, its natural rights theory undermined, and its commanding position effectively turned.” Alan Grimes places Lieber at the transition between “the constitutional and legal approach to an understanding of the nature of the American Union, and the rise of the organic concept of the nation.” The importance of the German professor in shaping the ideas which Lincoln exploited fully has been noticed by other historians. Lieber “had indeed argued before the war that the original Constitution was insufficient to the needs of the nation . . . in the 1830s and 1840s, he had gained prominence, North and South, by attacking the idea of a fixed Constitution.” A staunch advocate of federal growth, he thought “that federal power should expand slowly and organically—and thus constitutionally—as the nation grew. . . . He believed that the war would solidify the Union and thus fulfill his dream, nurtured during his school years in Germany, of living in a modern nation-state.” Later on, during the war Lieber became very popular, wrote dozens of articles and pamphlets in order “to popularize his distinctive brand of nationalism.” In practice, “[h]is many public statements used the South’s insurrection to justify an expansion of federal power beyond what the Constitution expressly sanctioned.”
• 53During and after the Civil War, Northern intellectuals developed the incipient organic theory, which at first did not reach the rank and file even in the North. In the Old World the organic theory was likewise serving the integral type of nationalism that had largely replaced the older, humanitarian variety of the early nineteenth century.
• 54In the words of Karl Marx, the Civil War was a “world-transforming . . . revolutionary movement.” Dating from the year 1862, this must be considered as one of his few correct prophecies, albeit an easy one.
• 55The Supreme Court, under Chase . . . upheld the constitutionality of the Legal Tender Act. Before the end of Reconstruction, Greenbackers were clamoring for more paper money. Few citizens before the war had contributed directly to the treasury. By the war’s close everyone and everything was taxed.
• 56In the end, it was the presidency of Lincoln—the very statesman who said “the principles of Jefferson are the definitions and axioms of free society”—that wrote finis to those very same principles and ended the American experiment in limited government and self-government. One of the major consequences of the metaconstitutional theory of the Union as an end in itself (and of equating its dissolution with a “moral catastrophe”) embraced by Abraham Lincoln was that of making American political thought more receptive to European theories. America proceeded towards a “normalization” of sorts, growing ever more similar to Europe. And this process of “convergence” was to reach its peak during the last century. Lincoln “normalized” America, thus opening the door for the Americanization of the world.
• 57In the end, it was the presidency of Lincoln—the very statesman who said “the principles of Jefferson are the definitions and axioms of free society”—that wrote finis to those very same principles and ended the American experiment in limited government and self-government. One of the major consequences of the metaconstitutional theory of the Union as an end in itself (and of equating its dissolution with a “moral catastrophe”) embraced by Abraham Lincoln was that of making American political thought more receptive to European theories. America proceeded towards a “normalization” of sorts, growing ever more similar to Europe. And this process of “convergence” was to reach its peak during the last century. Lincoln “normalized” America, thus opening the door for the Americanization of the world.
• 58In conclusion, we must turn again to the American Staatstheorie professors. It is true that their dominance in the profession faded after World War I, and their ultimate failure might be linked to the fact that they were “unable to apply the German idea of the state to the American Political tradition.” But this is true only from a purely theoretical perspective. Abraham Lincoln was not engaging in such a complex pursuit. He did not have to render the two traditions compatible, but rather to burn the bridges with the old American notion of “liberty vs. government.” In addition, he did not have to win any sophisticated scholarly dispute, as he had better weapons than continental authorities on the subject of liberty and the State. It was his army that, in fact made every citizen, North and South of the Potomac, appreciate the notion that there was an identity of interest between the individual and the State (by now understood as the Nation).
• 59Austrians like Hoppe are not alone in this particular criticism of L&E. Benjamin Zipursky, a representative of so called “pragmatic conceptualism,” challenges the theory of economic analysis of tort law. According to him, tort law is, in essence, “backward-looking.” If we turn to the factory example, the right way of looking at the situation is to investigate the past, determine the structure of rights that was in place before the pollution, describe the actions of both plaintiff and defendant and, on this basis, decide who is to be held liable. On the other hand, the economic (Posnerian) approach is “forward looking;” the initial distribution of rights is of no importance—“where liability should lie ultimately depends on an answer to a question about the future, not about the past.” This, unfortunately, leads us to the conclusion that, for L&E what is right and what is wrong are merely contingent. A just legal system can hardly be based on the contingent notions of right and wrong.
• 60Austrians like Hoppe are not alone in this particular criticism of L&E. Benjamin Zipursky, a representative of so called “pragmatic conceptualism,” challenges the theory of economic analysis of tort law. According to him, tort law is, in essence, “backward-looking.” If we turn to the factory example, the right way of looking at the situation is to investigate the past, determine the structure of rights that was in place before the pollution, describe the actions of both plaintiff and defendant and, on this basis, decide who is to be held liable. On the other hand, the economic (Posnerian) approach is “forward looking;” the initial distribution of rights is of no importance—“where liability should lie ultimately depends on an answer to a question about the future, not about the past.” This, unfortunately, leads us to the conclusion that, for L&E what is right and what is wrong are merely contingent. A just legal system can hardly be based on the contingent notions of right and wrong.
• 61The principle of wealth maximization necessarily favors those who already have money, or the resources with which to earn it, and are therefore able to pay more than others to have a new legal rule defined in the way that is favorable to them.
• 62A less welcome implication of the wealth-maximization approach is that people who are very poor . . . count only if they are part of the utility function of somebody who has wealth.
• 63According to Posner, not only property rights to chattels are to be instrumentally distributed according to the wealth maximization principle. Posner seeks to present a universal, normative benchmark for allocation of all sorts of rights, including the self-ownership of one’s own labor. In other words, the issue of initial assignment of property rights is considered, since it is “the starting point for a market system.” The fact that people own their own lives and labor is, according to Posner, explicable by the wealth maximization principle itself; assignment of these rights to “natural owners” is a result of calculus. States Posner:
• 64This is the economic reason for giving a worker the right to sell his labor and a woman the right to determine her sexual partners. If assigned randomly to strangers these rights would generally (not invariably) be repurchased by the worker and the woman respectively.