By John Ingram
On May 26, 2013, Daily Kos published an article by a user called Troubadour, titled “Five Horrific Things Libertarian/Conservative Logic Calls ‘Freedom.’” The article claims that libertarian free-market ideology supports slavery, dictatorship, serfdom, robbery, lynching, coercive private imprisonment, and child prostitution. While the claims are not necessarily wrong on every count, most are either unrealistic or ignorant of what libertarian philosophy actually says about these specific issues. Like the Daily Kos article, I will deal with them one by one.
This section begins as follows:
“A person is their own property.” Sounds reasonable, doesn’t it? Sounds like Libertarians and Conservatives (LibCons) are taking a position opposed to slavery, right? Nope. See, there’s a problem with that statement: Property owners have the legal right to sell what they own to someone else. What’s more, property can be legally seized by creditors. They’re not saying every person is perpetually and intrinsically entitled to fundamental human rights – that’s a liberal position, and one they hold in utter contempt. What they’re saying is that if you are in possession of such rights, then they belong to you until you willingly sign them away, have them stripped by creditors, or revoked by courts. A human being is nothing more than a commodity in this ideological viewpoint, and a free person is merely one who happens to be in their own possession (Troubadour).
This assumes that [right] libertarians believe that there is only one specific basis for the assignment of property and that all ownership interests are alienable. If this is true, even concerning one’s ownership interest over his body, then the allegation that libertarians would allow for slavery under certain circumstances would be true. Not all libertarians deny this allegation, however. Walter Block, for one, has defended the ability for a person to sell himself into slavery, claiming that a person should be able to sacrifice his freedom to save the life of a loved one and that, if such a contract were not enforceable, there would be no way to save the life of the loved one. While Block’s latter claim may be true in unusual circumstances, I, like most libertarians, do not believe it justifies the enforcement of a slave contract. Libertarian legal theorist Stephan Kinsella has explained why the ownership interest a person has in his own body is different from other ownership interests and why it is, in fact, inalienable (Block).
In his article, “How We Come to Own Ourselves”, Dr. Kinsella explained how the homesteading principle can only assign ownership of external property. It does not explain how we come to own our own bodies. If the homestead principle applied to human bodies, then we would have to conclude that parents are the rightful owners of their children. This presents some problems. If we do not own ourselves, then how can we claim property? Is there some arbitrary age at which a person becomes his own property? Dr. Kinsella has dealt with these questions by explaining that homesteading is not the basis of ownership, but one application of the basis, which he calls “objective link.” (Kinsella How)
Dr. Kinsella argues that “title [to property] has to be assigned… based on ‘the existence of an objective, intersubjectively ascertainable link between owner and the’ resource claimed.” As the right to property is an exclusively human right (at least until the discovery of intelligent extraterrestrial life), the objective link between an owner and non-human property is established by first use, in the case of previously unowned property, or the transfer from a previous owner. The link between a person and his body, however, is direct control. Since it is not currently possible to transplant brains (as far as I know, at least), this link is currently inalienable except through incapacitation or death (Kinsella How).
This control-based objective link between a person and his body implies that a person cannon alienate ownership rights to his body. Additionally, libertarians of the Rothbardian variety (which I am) agree that freedom of contract is merely an extension of the right to property, and that contracts, therefore, should be treated as transfers of title to existing property, not simply as promises. Rothbard states that “the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party.” This construct of contract law, combined with the idea of an objective link as a basis of ownership, means that no agreement which binds a person in servitude to another would be enforceable in a libertarian world (Rothbard).
2. Dictatorship & Serfdom
In this section, Troubadour claims that libertarian property rights make each owner a dictator over his property. Here is the first paragraph:
Another heinous consequence of “sovereign citizen” horses–t is the notion that private property gives its owners dictatorial powers within its boundaries – in other words, that all laws other than the whim of the owner cease to exist once you enter private property. To this way of thinking, the United States of America doesn’t exist on private property – it’s just a bitterly resented grouting between lawless private tyrannies like medieval dukedoms. According to this viewpoint, if you step off the street into a person’s home, you’re stepping out of 21st century America into 10th century Wallachia, with all the attendant differences in rights and morals (Troubadour).
The second paragraph also ends with this gem: “They believe the phrase ‘King of the Castle’ is supposed to be literally true: A King being someone who has the right to have people executed, beaten, tortured, arrested, doesn’t matter – completely at their discretion. (Troubadour)”
This is ignorant, plain and simple. When you enter someone else’s property, you do not give up your ownership interest in your body (your right to life). If you are invited into the home of another, you are free to leave at any time. If you have overstayed your welcome, the owner may force you to leave, but libertarian principles of justice would not allow him to use excessive force to do so. Libertarians do believe that the punishment should fit the crime, and that property relations are no exception. I would argue that a gun-owning homeowner does not have the right to shoot a trespasser, unless doing so is necessary to prevent further crime, or unless all reasonable methods of removing him have failed. Unless the trespasser is an imminent threat to someone’s health, the homeowner, I would say, is obligated to start by demanding that the trespasser leave immediately. If the trespasser does not leave, then the homeowner should either use physical force to remove the trespasser or threaten to shoot. Only if these actions do not cause the trespasser to leave, would I agree that the homeowner has the right to shoot (Kinsella Punishment).
The third paragraph in this section begins: “But wait, it gets worse. What if you economically have no choice but to live on someone else’s property – do owners have the right to have private security forces arrest, beat, or summarily execute renters? (Troubadour)”
In my previous argument, I refuted the idea that libertarians support the right of owners to physically harm guests, but in this section of Troubadour’s argument, he or she assumes that the libertarian idea of property would allow landlords to violate lease agreements and oppress tenants. Rothbard, however, deals with this in his article on contracts.
On our model, Jones, the leaseholder (renter), owns the use of the property for the contractual period of the lease; five years of property use has been transferred to Jones. Therefore Robinson (the landlord) cannot break the lease (unless, of course, the breaking of hire under such conditions was expressly included as a provision in the lease). (Rothbard)
I am not entirely sure why this section got the title it did. The “robbery” explained here is the controversial (among libertarians) issue of “hostile encirclement”, where a rich person buys a ring of land surrounding yours and prohibits you crossing over without paying a heavy toll. Again, this issue is controversial among libertarians. Some, including Walter Block and Roderick Long, believe that easement is a right, while Stephan Kinsella disagrees. While I have great respect for Dr. Block and Dr. Long, I feel like I have to agree with Dr. Kinsella here. I agree that a person has no right to cross another person’s property without permission. However, I do not believe that this is a great failing of libertarianism. Troubadour argues that a person who encircles
[has] the right to set up a tollbooth between your house and the outside world and charge you $5,000 to leave and come back. Moreover, they have the right to man that tollbooth with armed Blackwater guards with heavy machine guns, and swiss-cheese you if you try to cross their property without paying what they demand (Troubadour).
Well, they do have the right to set up a toll-booth and hire guards, but they do not have the right to shoot as soon as you try to run across, as I explained earlier. Troubadour’s argument here is silly, however. The cost of employing the guards is probably much higher than you would be willing to pay to cross. Also, the libertarian idea of homesteading only grants the homesteader ownership of the land they use. Homesteading the land at the surface, and perhaps a few feet below by digging and tilling, does not grant the owner title to all the earth beneath the owned land, and it also does not grant ownership to the sky above. A person who can afford to pay a toll high enough, and frequent enough, to make the encirclement profitable can probably also afford to pay to have a tunnel dug under the encircling property (provided the tunneling does not damage the above property), or to buy a small personal aircraft. On that note, if hostile encirclement really turns out to be the problem Troubadour says it would be, then a market for cheap personal aircraft would likely emerge in response. Also, if the encircled person is wealthy enough for the encirclement to be profitable, then there is likely at least one business on the other side of the encircling property interested enough in his consumption to be willing to pay for easement rights.
4. Lynching/Private Imprisonment
I dealt with most of this section in my response to Section 2. The punishment should fit the crime. Troubadour accuses libertarians of not supporting due process for the accused and of believing that private police would mean oppression of those who differ from social norms. For example: “…if you do something the powerful citizens of the community find offensive (like being black and looking at a white lady), well they may just decide to settle things privately with a lynch mob (Troubadour).” It should be noted that, even under a democratic government, the treatment of different people will be largely based on societal attitudes. If enough influential people in a democratic society believe that black people are inferior (as they did through most of American history), then black people will likely be treated as inferior. In the same way, the situation of people living in a place with no government will depend on societal attitudes. Anarcho-communism has no government, but not many market libertarians would see the transition of the United States to an anarcho-communist society as an improvement.
Then there is the issue of private prisons:
Which brings us to things actually going on in our society: The sale of courts, elections, and police forces to the highest bidder, who then build private prisons and turn the entire system of criminal justice into a for-profit diabolical farce where human suffering is the only product. Of course, since LibCons think it’s all right for courts to put people into slavery via forced prison labor, it makes sense they would also support the kinds of corrupt “political enterpreneurship” that arises from it – like that juvenile court judge in Pennsylvania who took money to send thousands of kids to jail (Troubadour).
As I said before, a libertarian society would not allow a person to be forced onto the property of another or prohibited from leaving. As Robert Murphy has explained, free market prisons would be places where criminals would actually want to go. Since those who commit heinous crimes would have difficulty finding employment or being allowed into restaurants, stores, and even roads, they may find that their best option is to go to a facility (prison) which houses criminals in exchange for the criminal working, under supervision, for the prison or for some other business that contracts with the prison. The prisoner would be free to leave if he chooses, and to find a better prison if he does not like the first (Murphy).
As for more minor offenders who are able to find work and be admitted into roads, restaurants, and stores, how might they be punished? Dr. Kinsella has applied the legal doctrine of estoppel to libertarian criminal law. Estoppel is a doctrine which holds that a person’s prior actions can be used to deny someone an argument if the prior action demonstrates that the person does not actually agree with their argument. In Dr. Kinsella’s application, a person who violates the property of another is “estopped” from claiming that his own property must not be violated in response, since his prior crime indicates that he does not respect property. Dr. Kinsella has also explained that punishment must be proportional.
It is proper to focus on the consequences of aggression in determining to what extent an aggressor is estopped, because the very reason people object to aggression, or wish to punish aggressors for it, is just because it has certain consequences. Aggressive action, by physically interfering with the victim’s person, is undesirable because, among other reasons, it can cause pain, or injury, or can interfere with the pursuit of goals in life, or because it simply creates a risky, dangerous situation, in which pain or injury or violence is more likely to result. Aggression interferes with one’s physical control over one’s life, i.e. over one’s own body and external property.
Killing someone brings about the most undesirable level of these consequences. Merely slapping someone, by contrast, does not, in normal circumstances. A slap has relatively insignificant consequences in all these respects, and thus A does not necessarily claim that aggressive killing is proper just because he slaps B. The universalization requirement does not prevent him from reasonably narrowing his implicit claim from the more severe “aggression is not wrong” to the less severe “minor aggression, such as slapping someone, is not wrong.” Thus B would be justified in slapping A back, but not in murdering A. I do not mean that B is justified only in slapping A, and no more, but certainly B is justified at least in slapping A, and is not justified in killing him (Kinsella Punishment).
To clarify Dr. Kinsella’s last sentence, the punishment need not be identical to the crime, as that may not be possible. For example, if A steals B’s sports car and wrecks it, and if A does not have a sports car of equal quality for B to take from A, then B would be entitled to assets owned by A which have similar market value (most likely, A would be obligated to provide enough property to pay for a replacement car). Also, I would say, the longer B is forced to go without the car, the more A would owe him, since A is, essentially, stealing time (a scarce resource) from B.
5. Child prostitution
This criticism is based partly on Troubadour’s mistaken idea that libertarians believe children are the property of their parents. However, Troubadour does recognize that some libertarians have stated that “parents are guardians of rights held in trust.” Returning to the issue of slavery, he then concludes that parents are then able to sell this interest or to require that their children work, even as prostitutes (Troubadour).
In his article on self-ownership, Dr. Kinsella explains that the natural link between parent and child is only as strong as the actual relationship between parent and child and that this relationship is severed if the parent neglects or abuses the child, allowing another adult who is committed to raising the child to take over as trustee. Additionally, as a child takes control of his life, the position of trustee dissolves.
So, who owns a child’s body? Initially, the parents own it as a sort of temporary trustee. The parents, as the producers of the child, have an objective link to the child’s body that defeats any claims of outsiders (unless the parents sever this link by abusing their position). That is, parents have a better claim to the child than any outsiders, because of their natural link to the child. However, when the child “homesteads” or “appropriates” his own body by establishing the requisite objective link sufficient to establish self-ownership, the child becomes an adult, so to speak, and now has a better claim to his body than his parents (Kinsella How).
Perhaps it takes a libertarian to know a libertarian, and those who are not libertarians sure know how to make us look weird, crazy, and downright evil. Troubadour, here, has taken some common, honest, criticisms of free market libertarianism and portrayed them as evidence that the ultimate goal of libertarians is a return to feudalism. Moreover, he claims that libertarians would accuse anyone who opposed “voluntary” slavery, feudalism, and corporatocracy of being communitsts or statists. His characterization of libertarians is so demonstrably false that its fallacies should be obvious to anyone who reads it.
 Troubadour. “Five Horrific Things Libertarian/Conservative Logic Calls ‘Freedom.’” Daily Kos, 26 May 2013. Web. 29 May 2013.
 Block, Walter. “Privatizing Rivers and Voluntary Slave Contracts.” LewRockwell.com, 27 July 2009. Web. 29 May 2013.
 Kinsella, Stephan. “How We Come to Own Ourselves.” Ludwig von Mises Institute, 7 Sept. 2006. Web. 29 May 2013.
 Rothbard, Murray. “Property Rights and the Theory of Contracts.” Ludwig von Mises Institute, 22 June 2007. Web. 29 May 2013.
 Kinsella, Stephan. “Punishment and Proportionality: The Estoppel Approach.” Ludwig von Mises Institute, 15 Jan. 2007. Web. 29 May 2013.
 Murphy, Robert. “Law without the State.” Ludwig von Mises Institute, 4 Nov. 2011. Web. 29 May 2013.