First, Rothbard did not attempt to justify his natural rights ethics by means of theology (Rothbard 2002: 4), so this need not detain us.
Rothbard used a non-religious or secular justification for natural law and natural rights, and he presents his case for natural rights in For a New Liberty: The Libertarian Manifesto (2nd edn; 2006 ):
“Let us turn then to the natural-rights basis for the libertarian creed, a basis which, in one form or another, has been adopted by most of the libertarians, past and present. ‘Natural rights’ is the cornerstone of a political philosophy which, in turn, is embedded in a greater structure of ‘natural law.’ Natural law theory rests on the insight that we live in a world of more than one—in fact, a vast number—of entities, and that each entity has distinct and specific properties, a distinct ‘nature,’ which can be investigated by man’s reason, by his sense perception and mental faculties. Copper has a distinct nature and behaves in a certain way, and so do iron, salt, etc. The species man, therefore, has a specifiable nature, as does the world around him and the ways of interaction between them. To put it with undue brevity, the activity of each inorganic and organic entity is determined by its own nature and by the nature of the other entities with which it comes in contact. Specifically, while the behavior of plants and at least the lower animals is determined by their biological nature or perhaps by their ‘instincts,’ the nature of man is such that each individual person must, in order to act, choose his own ends and employ his own means in order to attain them. Possessing no automatic instincts, each man must learn about himself and the world, use his mind to select values, learn about cause and effect, and act purposively to maintain himself and advance his life. Since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man’s survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge and values. This is the necessary path of human nature; to interfere with and cripple this process by using violence goes profoundly against what is necessary by man’s nature for his life and prosperity. Violent interference with a man’s learning and choices is therefore profoundly ‘antihuman’; it violates the natural law of man’s needs.” (Rothbard 2006 : 26–27).There are severe problems here, as follows:
(1) It is untrue that “since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man’s survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge and values.” Rothbard is claiming a moral necessity here. He is deducing a morally necessary “ought” from an “is,” a deduction which, as Hume showed, is impossible to justify. But putting that aside for the moment (more on it later), even his reasoning is faulty.Let us now turn to Rothbard’s natural rights argument for absolute ownership of external objects or external property rights:
Take a clear example: all human beings begin life as children and nearly always subject to the coercion of their parents who impose rules, deprive them of the freedom to do anything they want, and at the same time choose to impart knowledge and values to their children.
Children can and do survive and flourish while being subject to quite severe parental constraints and rules. For example, if one is raised Catholic, one did not give one’s consent when a child to be raised with Catholic values and religion: the choice was made by the parents, but one may well become a moral, successful, and prosperous human being, despite that parental coercion in knowledge and values.
There are even adults who prefer to let others choose their ends.
Certain mentally impaired human beings can survive and even flourish even though they are subject to strict control by their carers.
(2) Rothbard’s statement is wrong:“Possessing no automatic instincts, each man must learn about himself and the world, use his mind to select values, learn about cause and effect, and act purposively to maintain himself and advance his life.”On the contrary, human beings do possess “automatic instincts”: hunger, thirst, and a vast range of genetically determined behavioural traits. To take one example: human children have a genetic predisposition to acquire language as naturally as a bird grows its feathers.
(3) Rothbard and the “is-ought” problem of David Hume.
The central passage where Rothbard attempts to deduce a human being’s natural right to be free from violence or coercion is here:“the nature of man is such that each individual person must, in order to act, choose his own ends and employ his own means in order to attain them. Possessing no automatic instincts, each man must learn about himself and the world, use his mind to select values, learn about cause and effect, and act purposively to maintain himself and advance his life. Since men can think, feel, evaluate, and act only as individuals, it becomes vitally necessary for each man’s survival and prosperity that he be free to learn, choose, develop his faculties, and act upon his knowledge and values. This is the necessary path of human nature; to interfere with and cripple this process by using violence goes profoundly against what is necessary by man’s nature for his life and prosperity. Violent interference with a man’s learning and choices is therefore profoundly ‘antihuman’; it violates the natural law of man’s needs.”This is subject to Hume’s “is–ought problem,” or at least one important interpretation of it that is compelling.
When a person argues that some moral “ought” statement is necessarily true and entailed by some prior descriptive facts, there are insuperable difficulties with defending such moral necessity.
Remember that the “ought” here entails a necessity in the truth of the moral statement.
How is it possible to deduce with necessary truth the prescriptive/normative statement “violent interference with a man’s learning and choices is therefore profoundly ‘antihuman’” from mere descriptive statements?
To see how unconvincing this argument is, one only needs to make some changes to it to see the absurdity of the underlying type of argument:“the nature of a leaf under the influence of gravity is to fall to the ground, such that each leaf must, in order to fall, be free from obstruction and interference when it detaches from the tree. Possessing no automatic instincts, each leaf must be subject to gravity, and fall to the ground; to interfere with and cripple this process by using interference to stop the leaf falling to the ground goes profoundly against what is necessary by the leaf’s nature. Violent interference with a leaf’s nature is therefore profoundly ‘antileaf’; it violates the natural law of the leaf’s natural action.”Just because the nature of a leaf (or really its propensity to do certain things under natural laws) is to fall to the ground under the influence of gravity, it simply does not follow that we have deduced with necessary truth that the leaf has any moral right whatsoever to fall to the ground.
Hume’s “is–ought problem” is a profound and devastating one for natural rights theorists and indeed for anyone who thinks that he can necessarily deduce moral truths from natural facts.
(4) Rothbard’s argument for the “right to self-ownership” is flawed.
Rothbard’s defence of the “right to self-ownership” is as follows:“The most viable method of elaborating the natural-rights statement of the libertarian position is to divide it into parts, and to begin with the basic axiom of the ‘right to self-ownership.’ The right to self-ownership asserts the absolute right of each man, by virtue of his (or her) being a human being, to ‘own’ his or her own body; that is, to control that body free of coercive interference. Since each individual must think, learn, value, and choose his or her ends and means in order to survive and flourish, the right to self-ownership gives man the right to perform these vital activities without being hampered and restricted by coercive molestation. Consider, too, the consequences of denying each man the right to own his own person. There are then only two alternatives: either (1) a certain class of people, A, have the right to own another class, B; or (2) everyone has the right to own his own equal quotal share of everyone else. The first alternative implies that while Class A deserves the rights of being human, Class B is in reality subhuman and therefore deserves no such rights. But since they are indeed human beings, the first alternative contradicts itself in denying natural human rights to one set of humans. Moreover, as we shall see, allowing Class A to own Class B means that the former is allowed to exploit, and therefore to live parasitically, at the expense of the latter. But this parasitism itself violates the basic economic requirement for life: production and exchange.” (Rothbard 2006 : 28).The first problem with this argument is that ownership and private property in the sense defined by Rothbard (and this point is crucial) are not even natural concepts. You do not naturally “own” your body in the sense in which Rothbard defines the word: but you do possess/have a body as a consequence of genetic and biological processes.
But ownership rights and private property rights even as moral concepts are socially constructed concepts and, in any sufficiently complex society, legal concepts too, not natural concepts.
Let us turn to Rothbard’s justification for absolute self-ownership to expand on this point:“The right to self-ownership asserts the absolute right of each man, by virtue of his (or her) being a human being, to ‘own’ his or her own body; that is, to control that body free of coercive interference.”This is just another instance of Rothbard’s reasoning being utterly unconvincing because it is subject to Hume’s “is–ought problem.”
That human beings qua natural human beings (and not malformed or severely injured human beings, for instance) possess bodies is an empirical fact, as we have seen.
It is clear that Rothbard uses “own” in a special moral sense here. For if “own” merely means “possess” or “have,” then one can no doubt say that human beings who possess bodies own (= possess or have) bodies, but this is a tautology and a trivial truth.
But it does not follow from his descriptive natural fact that humans beings must with necessary moral truth own their bodies in the sense of being able “to control that body free of coercive interference.”
Furthermore, Rothbard’s claim that there are only “two alternatives” to denying each man the right to own his own person is manifestly false, as is shown by Edward Feser (“Rothbard as a philosopher,” August 8, 2009).
In fact, there are a number of possibilities that Rothbard does not consider, as Feser notes:(1) no human actually owns himself or herself;Again, we must remember that the word “own” here means the absolute, morally necessary natural right “to control a human body free of coercive interference.”
(2) a divine, creator being owns all human beings;
(3) one group of human beings might have a right to partial ownership of another group;
(4) all human beings have a partial and/or unequal ownership of everyone else.
It is (1) that is right: no human being or any living thing owns itself in the sense of having some absolute, morally necessary natural right “to control its body free of coercive interference.”
Does this mean that human beings can have no moral rights? It does not: for there are many ethical theories apart from Rothbard’s natural rights theory that can overcome or evade Hume’s “is–ought problem.”
First, it is a mistake to think that morality requires absolute necessary truth, like the truth of a valid analytic statement such as “all bachelors are unmarried” or “1 + 1 = 2.”
For example, some types of consequentialism argue that morality aims at certain ends, and that the logic of moral argument can only be an inductive logic, not a necessary deductive logic.
That is to say, it is correct that no moral “ought” statement is necessarily implied by descriptive facts, but a statement urging certain actions to achieve certain ends may well be inductively implied by descriptive facts in a probabilistic sense only. What we call “ethics” is essentially the inductive logic of arguments about how to achieve certain ends. Even the ultimate ends that we should aim at can be justified with rational argument, empirical evidence and inductive argument (and I have sketched my own consequentialist ethics here, on the basis of the theory called prescriptivism).
So what is the consequentialist view of human rights and rights to property? Under consequentialism, what human beings can have is a non-necessary moral right to a high, but not absolute, degree of freedom from coercive interference and a high, but not absolute, degree of freedom of control over external property. In order to achieve certain ends, we must accept restrictions on both personal property rights and behaviour.
“We have established each individual’s right to self-ownership, to a property right in his own body and person. But people are not floating wraiths; they are not self-subsistent entities; they can only survive and flourish by grappling with the earth around them. They must, for example, stand on land areas; they must also, in order to survive and maintain themselves, transform the resources given by nature into ‘consumer goods,’ into objects more suitable for their use and consumption. Food must be grown and eaten; minerals must be mined and then transformed into capital and then useful consumer goods, etc. Man, in other words, must own not only his own person, but also material objects for his control and use. How, then, should the property titles in these objects be allocated?The argument is just as flawed as Rothbard’s argument for absolute ownership of one’s own body:
Let us take, as our first example, a sculptor fashioning a work of art out of clay and other materials; and let us waive, for the moment, the question of original property rights in the clay and the sculptor’s tools. The question then becomes: Who owns the work of art as it emerges from the sculptor’s fashioning? It is, in fact, the sculptor’s ‘creation,’ not in the sense that he has created matter, but in the sense that he has transformed nature-given matter—the clay—into another form dictated by his own ideas and fashioned by his own hands and energy. Surely, it is a rare person who, with the case put thus, would say that the sculptor does not have the property right in his own product. Surely, if every man has the right to own his own body, and if he must grapple with the material objects of the world in order to survive, then the sculptor has the right to own the product he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material, by ‘mixing his labor’ with the clay, in the phrase of the great property theorist John Locke. ....
As in the case of the ownership of people’s bodies, we again have three logical alternatives: (1) either the transformer, or ‘creator’ has the property right in his creation; or (2) another man or set of men have the right in that creation, i.e., have the right to appropriate it by force without the sculptor’s consent; or (3) every individual in the world has an equal, quotal share in the ownership of the sculpture—the ‘communal’ solution. Again, put baldly, there are very few who would not concede the monstrous injustice of confiscating the sculptor’s property, either by one or more others, or on behalf of the world as a whole. By what right do they do so? By what right do they appropriate to themselves the product of the creator’s mind and energy? In this clear-cut case, the right of the creator to own what he has mixed his person and labor with would be generally conceded. (Once again, as in the case of communal ownership of persons, the world communal solution would, in practice, be reduced to an oligarchy of a few others expropriating the creator’s work in the name of ‘world public’ ownership.)
The main point, however, is that the case of the sculptor is not qualitatively different from all cases of ‘production.’ The man or men who had extracted the clay from the ground and had sold it to the sculptor may not be as ‘creative’ as the sculptor, but they too are ‘producers,’ they too have mixed their ideas and their technological know-how with the nature-given soil to emerge with a useful product. They, too, are “producers,” and they too have mixed their labor with natural materials to transform those materials into more useful goods and services. These persons, too, are entitled to the ownership of their products.” (Rothbard 2006 : 36–39).
(1) the fact that I have used my labour to possess some external object in nature not claimed by anyone else only means that I now possess or have it: the descriptive facts do not entail with necessary moral truth that I now have an absolute right to ownership of the object free from all external coercion. The morally necessary “ought” just does not follow from the “is.”In conclusion, the foundation of Rothbard’s natural rights ethics is utterly flawed, incoherent and dependent on logical fallacies long known in the history of philosophy.
To see this, let us look at a real world example:Bees use their labour to collect nectar from flowers: they now have a morally necessary natural right to the nectar!If Rothbard’s natural rights arguments were true, then it would be a grossly immoral act for any human being to take honey from wild bee hives, and saying that a person used their labour to coercively collect the honey so that he “homesteaded” it does not overcome the problem: for then I could claim that the labour expended by a thief in robbing someone was a legitimate way to own the victim’s property. Clearly, this does not work under Rothbard’s ethics.
Then honeybees return to the hive and give their nectar to worker bees. These bees labour by regurgitating the nectar and making honey from it (through the action of enzymes), and they then use their labour to store the honey in honeycombs.
It follows from this that bees own their honey and have the absolute natural right to not be aggressed against and have their honey stolen by other animals and humans!
Another response would be that natural rights only apply to human beings: but even this does not succeed, for if no non-human, living thing has any absolute natural right to self-ownership and ownership of external things, then why should human beings? Why the double standard?
The answer to these various moral conundrums is of course that Rothbard’s natural rights theory is nonsense.
But what would a consequentialist say about this? Can we take honey from bees morally, given that the bees mixed their labour with the honey? The answer is “yes,” because no living thing has any necessary moral right to its external property in the first place.
Is it always moral to take honey from bees? Though it would have to rank low on the list of moral question humans must face, consequentialism can provide better answers than Rothbard’s natural rights ethics and its incoherence.
If a human being, for example, has no pressing need for food and destroys a hive and takes all the honey leaving the bees with no food and to suffer and starve, then one can make a consequentialist case that this is immoral. But here it would be immoral because we have to keep in mind the consequentialist aim of minimising the harm and suffering we cause to other living things (of course, even here empirical questions arise: is the animal in question conscious? Does it feel pain? Can it suffer?).
But fortunately most bee-keeping is not like this and such moral questions do not normally arise and, as noted above, even if they did would be low on our list of moral questions: for most beekeepers take a certain amount of the honey and leave the hive enough to survive and sometimes even provide the bees with sugar or corn syrup if necessary.
Yet another issue arises with animals: say you acquire fertilised chicken eggs and through your labour create chickens. Does it follow you have an absolute natural moral right to the animals, even to the point of torturing them and mistreating them? Is it immoral for another human being or the community through its laws and legal system to use non-lethal and limited coercion to stop you in your mistreatment? The absurd natural rights ethics of Rothbard says “yes,” the consequentialist rightly says “no,” because (1) you never had any absolute natural right to ownership of the animals in the first place and (2) greater moral issues arise when human beings own living things that can feel pain and suffer.
In short, with these examples, we see how Rothbard’s natural rights ethics leads to incoherence in the first instance, and moral bankruptcy in the second, and that consequentialism is superior.
(2) One of Rothbard’s arguments, taken from Locke, verges on the mystical:“Surely, if every man has the right to own his own body, and if he must grapple with the material objects of the world in order to survive, then the sculptor has the right to own the product he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material, by ‘mixing his labor’ with the clay, in the phrase of the great property theorist John Locke.”It is difficult to see how using one’s labour to create something makes the thing in question an “extension of [sc. the] … personality” of the labourer.
Even if did, it would still not follow that any necessary natural moral right to the created thing is created.
For example, are children the absolute property of parents, merely because parents have engaged in labour to create the children?
Feser, Edward, “Rothbard as a philosopher,” August 8, 2009.
Rothbard, M. N. 2006 . For a New Liberty: The Libertarian Manifesto (rev. edn), Ludwig von Mises Institute.
Feser, Edward, “Rothbard as a philosopher,” August 8, 2009