THE ETHICS OF LIBERTY
by Murray N. Rothbard

This text has been extracted from:
http://mises.org/rothbard/ethics.pdf

. . . 

PART II:
A THEORY OF LIBERTY

6 . A Crusoe Social Philosophy. 
One of the most commonly derided constructions of classical economic theory is "Crusoe Economics," the analysis of an isolated man face-to-face with nature. And yet, this seemingly "unrealistic" model, as I have tried to demonstrate elsewhere, has highly important and even indispensable uses. It serves to isolate man as against nature, thus gaining clarity by abstracting at the beginning from interpersonal relations. Later on, this man/nature analysis can be extended and applied to the "real world." The bringing in of "Friday" or of one or more other persons, after analysis of strictly Robinsonian isolation, then serves to show how the addition of other persons affects the discussion. These conclusions can then also be applied to the contemporary world. Thus, the abstraction of analyzing a few persons interacting on an island enables a dear perception of the basic truths of interpersonal relations, truths which remain obscure if we insist on looking first at the contemporary world only whole and of a piece.
If Crusoe economics can and does supply the indispensable groundwork for the entire structure of economics and praxeology - the broad, formal analysis of human action - a similar procedure should be able to do the same thing for social philosophy, for the analysis of the fundamental truths of the nature of man vis-à-vis the nature of the world into which he is born, as well as the world of other men. Specifically, it can aid greatly in solving such problems of political philosophy as the nature and role of liberty property, and violence.
Let us consider Crusoe, who has landed on his island, and, to simplify matters, has contracted amnesia. What inescapable facts does Crusoe confront? He finds, for one thing, himself, with the primordial fact of his own consciousness and his own body. He finds, second, the natural world around him, the nature-given habitat and resources which economists sum up in the term "land." He finds also that, in seeming contrast with animals, he does not possess any innate instinctual knowledge impelling him into the proper paths for the satisfaction of his needs and desires. In fact, he begins his life in this world by knowing literally nothing; all knowledge must be learned by him. He comes to learn that he has numerous ends, purposes which he desires to achieve, many of which he must achieve to sustain his life: food, shelter, clothing, etc. After the basic needs are satisfied, he finds more "advanced" wants for which to aim. To satisfy any or all of these wants which he evaluates in accordance with their respective importance to him, Crusoe must also learn how to achieve them; he must, in short, acquire "technological knowledge," or "recipes."
Crusoe, then, has manifold wants which he tries to satisfy, ends that he strives to attain. Some of these ends may be attained with minimal effort on his part; if the island is so structured, he may be able to pick edible berries off nearby bushes. In such cases, his "consumption" of a good or service may be obtained quickly and almost instantaneously. But for almost all of his wants, Crusoe finds that the natural world about him does not satisfy them immediately and instantaneously; he is not, in short, in a Garden of Eden. To achieve his ends, he must, as quickly and productively as he can, take the nature-given resources and transform them into useful objects, shapes, and places most useful to him-so that he can satisfy his wants.
In short, he must (a) choose his goals; (b) learn how to achieve them by using nature-given resources; and then (c) exert his labor energy to transform these resources into more useful shapes and places: ie., into "capital goods", and finally into "consumer goods" that he can directly consume. Thus, Crusoe may build himself, out of the given natural raw materials, an axe (capital good) with which to chop down trees, in order to construct a cabin (consumer good). Or he may build a net (capital good) with which to catch fish (consumer good). In each case, he employs his learned technological knowledge to exert his labor effort in transforming land into capital goods and eventually into consumer goods. This process of transformation of land resources constitutes his "production." In short, Crusoe must produce before he can consume, and so that he may consume. And by this process of production, of transformation, man shapes and alters his nature-given environment to his own ends, instead of, animal-like, being simply determined by that environment. 
And so man, not having innate, instinctive, automatically acquired knowledge of his proper ends, or of the means by which they can be achieved, must learn them, and to learn them he must exercise his powers of observation, abstraction, thought: in short, his reason. Reason is man's instrument of knowledge and of his very survival; the use and expansion of his mind, the acquisition of knowledge about what is best for him and how he can achieve it, is the uniquely human method of existence and of achievement. And this is uniquely man's nature; man, as Aristotle pointed out, is the rational animal, or to be more precise, the rational being. Through his reason, the individual man observes both the facts and ways of the external world, and the facts of his own consciousness, including his emotions: in short, he employs both extraspection and introspection.
Crusoe, we have said, learns about his ends and about how to attain them. But what specifically does his learning faculty, his reason, do in the process of obtaining such knowledge? It learns about the way things work in the world, i.e., the natures of the various specific entities and classes of entities that the man finds in existence; in short, he learns the natural laws of the way things behave in the world. He learns that an arrow shot from a bow can bring down a deer, and that a net can catch an abundance of fish. Further, he learns about his own nature, about the sort of events and actions that will make him happy or unhappy; in short, he learns about the ends he needs to achieve and those he should seek to avoid.
This process, this method necessary to man's survival and prosperity upon the earth, has often been derided as unduly or exclusively "materialistic." But it should be clear that what has happened in this activity proper to man's nature is a fusion of "spirit" and matter; man's mind, using the ideas it has learned, directs his energy in transforming and reshaping matter into ways to sustain and advance his wants and his life. Behind every "produced" good, behind every man-made transformation of natural resources, is an idea directing the effort, a manifestation of man's spirit.
The individual man, in introspecting the fact of his own consciousness, also discovers the primordial natural fact of his freedom: his freedom to choose, his freedom to use or not use his reason about any given subject. In short, the natural fact of his "free will." He also discovers the natural fact of his mind's command over his body and its actions: that is, of his natural ownership over his self.
Crusoe, then, owns his body; his mind is free to adopt whatever ends it wishes, and to exercise his reason in order to discover what ends he should choose, and to learn the recipes for employing the means at hand to attain them. Indeed, the very fact that the knowledge needed for man's survival and progress is not innately given to him or determined by external events, the very fact that he must use his mind to learn this knowledge, demonstrates that he is by nature free to employ or not to employ that reason -i.e., that he has free will. Surely, there is nothing outré or mystical about the fact that men differ from stones, plants, or even animals, and that the above are crucial differences between them. The critical and unique facts about man and the ways in which he must live to survive - his consciousness, his free will and free choice, his faculty of reason, his necessity for learning the natural laws of the external world and of himself, his self-ownership, his need to "produce" by transforming nature-given matter into consumable forms - all these are wrapped up in what man's nature is, and how man may survive and flourish. Suppose now that Crusoe is confronted with a choice of either picking berries or picking some mushrooms for food, and he decides upon the pleasantly tasting mushrooms, when suddenly a previously shipwrecked inhabitant, coming upon Crusoe, shouts: "Don't do that! Those mushrooms are poisonous." There is no mystery in Crusoe's subsequent shift to berries. What has happened here? Both men have operated on an assumption so strong that it remained tacit, an assumption that poison is bad, bad for the health and even for the survival of the human organism - in short, bad for the continuation and the quality of a man's life. In this implicit agreement on the value of life and health for the person, and on the evils of pain and death, the two men have clearly arrived at the basis of an ethic, grounded on reality and on the natural laws of the human organism.
If Crusoe had eaten the mushrooms without learning of their poisonous effects, then his decision would have been incorrect - a possibly tragic error based on the fact that man is scarcely automatically determined to make correct decisions at all times. Hence, his lack of omniscience and his liability to error. If Crusoe, on the other hand, had known of the poison and eaten the mushrooms anyway - perhaps for "kicks" or from a very high time preference - then his decision would have been objectively immoral, an act deliberately set against his life and health. It may well be asked why life should be an objective ultimate value, why man should opt for life (in duration and quality). In reply, we may note that a proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation. Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the preservation and furtherance of one's life takes on the stature of an incontestable axiom.
We have seen that Crusoe, as in the case of any man, has freedom of will, freedom to choose the course of his life and his actions. Some critics have charged that this freedom is illusory because man is bound by natural laws. This, however, is a misrepresentation - one of the many examples of the persistent modern confusion between freedom and power. Man is free to adopt values and to choose his actions; but this does not at all mean that he may violate natural laws with impunity - that he may, for example, leap oceans at a single bound. In short, when we say that "man is not 'free' to leap the ocean," we are really discussing not his lack of freedom but his lack of power to cross the ocean, given the laws of his nature and of the nature of the world. Crusoe's freedom to adopt ideas, to choose his ends, is inviolable and inalienable; on the other hand, man, not being omnipotent as well as not being omniscient, always finds his power limited for doing all the things that he would like to do. In short, his power is necessarily limited by natural laws, but not his freedom of will. To put the case another way it is patently absurd to define the "freedom" of an entity as its power to perform an act impossible for its nature! 
If a man's free will to adopt ideas and values is inalienable, his freedom of action - his freedom to put these ideas into effect in the world, is not in such a fortunate condition. Again, we are not talking about the limitations on man's power inherent in the laws of his own nature and of the natures of other entities. What we are talking about now is interference with his sphere of action by other people - but here we are getting a bit ahead of Robinson Crusoe and our discussion. Suffice it to say now that, in the sense of social freedom - of freedom as absence of molestation by other persons - Crusoe is absolutely free, but that a world of more than one person requires our further investigation.
Since, in this book, we are interested in social and political philosophy rather than in philosophy proper, we shall be interested in the term "freedom" in this social or interpersonal sense, rather than in the sense of freedom of will. 
Let us now return to our analysis of Crusoe's purposeful transformation of nature-given data though the understanding of natural laws. Crusoe finds virgin, unused land on the island; land, in short, unused and uncontrolled by anyone, and hence unowned. By finding land resources, by learning how to use them, and, in particular, by actually transforming them into a more useful shape, Crusoe has, in the memorable phrase of John Locke, "mixed his labor with the soil." In doing so, in stamping the imprint of his personality and his energy on the land, he has naturally converted the land and its fruits into his property. Hence, the isolated man owns what he uses and transforms; therefore, in his case there is no problem of what should be A's property as against B's. Any man's property is ipso facto what he produces, i.e., what he transforms into use by his own effort. His property in land and capital goods continues down the various stages of production, until Crusoe comes to own the consumer goods which he has produced, until they finally disappear through his consumption of them.
As long as an individual remains isolated, then, there is no problem whatever about how far his property - his ownership - extends; as a rational being with free will, it extends over his own body, and it extends further over the material goods which he transforms with his labor. Suppose that Crusoe had landed not on a small island, but on a new and virgin continent, and that, standing on the shore, he had claimed "ownership" of the entire new continent by virtue of his prior discovery. This assertion would be sheer empty vain glory, so long as no one else came upon the continent. For the natural fact is that his true property - his actual control over material goods -would extend only so far as his actual labor brought them into production. His true ownership could not extend beyond the power of his own reach. Similarly, it would be empty and meaningless for Crusoe to trumpet that he does not "really" own some or all of what he has produced (perhaps this Crusoe happens to be a romantic opponent of the property concept), for in fact the use and therefore the ownership has already been his. Crusoe, in natural fact, owns his own self and the extension of his self into the material world, neither more nor less.

7. Interpersonal Relations: Voluntary Exchange. 
It is now time to bring other men into our Robinsonian idyll - to extend our analysis to interpersonal relations. The problem for our analysis is not simply more people: after all, we could simply postulate a world of a million Crusoes on a million isolated islands, and our analysis would not need to be expanded by one iota. The problem is to analyze the interaction of these people. Friday, for example, might land in another part of the island, and make contact with Crusoe, or he might land on a separate island, and then later construct a boat that could reach the other island. Economics has revealed a great truth about the natural law of human interaction: that not only is production essential to man's prosperity and survival, but so also is exchange. In short, Crusoe, on his island or part thereof, might produce fish, while Friday, on his part, might grow wheat, instead of both trying to produce both commodities. By exchanging part of Crusoe's fish for some of Friday's wheat, the two men can greatly improve the amount of both fish and bread that both can enjoy. This great gain for both men is made possible by two primordial facts of nature - natural laws - on which all of economic theory is based: (a) the great variety of skills and interests among individual persons; and (b) the variety of natural resources in geographic land areas. If all people were equally skilled and equally interested in all matters, and if all areas of land were homogeneous with all others, there would be no room for exchanges. But, in the world as it is, the opportunity for specialization in the best uses for land and people enables exchanges to multiply vastly and immensely to raise the productivity and the standard of living (the satisfaction of wants) of all those participating in exchange.
If anyone wishes to grasp how much we owe to the processes of exchange, let him consider what would happen in the modern world if every man were suddenly prohibited from exchanging anything with anyone else. Each person would be forced to produce all of his own goods and services himself. The utter chaos, the total starvation of the great bulk of the human race, and the reversion to primitive subsistence by the remaining handful of people, can readily be imagined.
Another remarkable fact of human action is that A and B can specialize and exchange for their mutual benefit even if one of them is superior to the other in both lines of production. Thus, suppose that Crusoe is superior to Friday in fish and wheat production. It still benefits Crusoe to concentrate on what he is relatively best at. If, for example, he is a far better fisherman than Friday but only a moderately better farmer, he can gain more of both products by concentrating on fishing, and then exchanging his produce for Friday's wheat. Or, to use an example from an advanced exchange economy, it will pay a physician to hire a secretary for typing, filing, etc. even if he is better at the latter jobs, in order to free his time for far more productive work. This insight into the advantages of exchange, discovered by David Ricardo in his Law of Comparative Advantage, means that, in the free market of voluntary exchanges, the "strong" do not devour or crush the "weak," contrary to common assumptions about the nature of the free-market economy. On the contrary, it is precisely on the free market where the "weak" reap the advantages of productivity because it benefits the "strong" to exchange with them.
The process of exchange enables man to ascend from primitive isolation to civilization: it enormously widens his opportunities and the market for his wares; it enables him to invest in machines and other "high-order capital goods"; it forms a pattern of exchanges - the free market -which enables him to calculate economically the benefits and the costs of highly complex methods and aggregates of production.
But economists too often forget, in contemplating the critical importance and the glories of the free market, what precisely is being exchanged. For apples are not simply being exchanged for butter, or gold for horses. What is really being exchanged is not the commodities themselves, but the rights to ownership of them. When Smith exchanges a bag of apples for Jones's pound of butter, he is actually transferring his ownership rights in the apples in exchange for the ownership rights to the butter, and vice versa. Now that Smith rather than Jones is the absolute controller of the butter, it is Smith who may eat it or not at his will; Jones now has nothing to say in its disposition, and is instead absolute owner of the apples. 
Returning now to Crusoe and Friday, suppose that more people, C, D, E ...join Crusoe and Friday on the island. Each specializes in different products; gradually one particular product emerges - because of such qualities as high value, steady demand, ready divisibility - as a medium of exchange. For it is discovered that the use of a medium enormously expands the scope of exchanges and the wants that can be satisfied on the market. Thus, a writer or an economics teacher would be hard put to exchange his teaching or writing services for loaves of bread, parts of a radio, a piece of a suit, etc. A generally acceptable medium is indispensable for any extensive network of exchange and hence for any civilized economy. 
Such a generally acceptable medium of exchange is defined as a money. It has generally been found, on the free market, that the best commodities for use as a money have been the precious metals, gold and silver. The exchange sequence now appears as follows: A, owning his body and his labor, finds land, transforms it, produces fish which he then owns; B uses his labor similarly to produce wheat, which he then owns; C finds land containing gold, transforms it, produces the gold which he then owns. C then exchanges the gold for other services, say A's fish. A uses the gold to exchange for B's wheat, etc. In short, the gold "enters circulation," i.e., its ownership is transferred from person to person, as it is used as a general medium of exchange. In each case, the exchangers transfer ownership rights, and, in each case, ownership rights are acquired in two ways and two ways only: (a) by finding and transforming resources ("producing"), and (b) by exchanging one's produce for someone else's product -including the medium of exchange, or "money" commodity. And it is clear that method (b) reduces logically to (a), for the only way a person can obtain something in exchange is by giving up his own product. In short, there is only one route to ownership of goods: production-and-exchange. If Smith gives up a product in exchange for Jones's which Jones also acquired in a previous exchange, then someone, whether the person from whom Jones bought the product or someone else down the line, must have been the original finder and transformer of the resource.
A man then, can acquire "wealth" - a stock of useful capital or consumer goods - either by "producing" it himself, or by selling to its producer some other product in exchange. The exchange process reduces logically back to original production. Such production is a process by which a man "mixes his labor with the soil" - finding and transforming land resources or, in such cases as a teacher or writer, by producing and selling one's own labor services directly. Put another way: since all production of capital goods reduces ultimately back to the original factors of land and labor, all production reduces back either to labor services or to finding new and virgin land and putting it into production by means of labor energy. 
A man may also obtain wealth voluntarily in another way: through gifts. Thus Crusoe, upon stumbling on Friday at another end of the island, may give him some sustenance. In such a case, the giver receives, not another alienable good or service from the other party, but the psychic satisfaction of having done something for the receiver. In the case of a gift, also, the process of acquisition reduces back to production and exchange and again ultimately to production itself, since a gift must be preceded by production, if not directly as in this case, then somewhere back down the line.
We have so far analyzed the exchange process for a multitude of exchanges of consumer goods. We must now complete our picture of the real world by analyzing exchanges along the structure of production. For exchanges in an advanced economy are not only "horizontal" (of consumer goods), but also "vertical": they proceed downward from the original transformation of land, down through the various types of capital goods, and finally to the ultimate state of consumption.
Let us consider a simple vertical pattern as it occurs in the exchange economy. Smith transforms land resources and constructs an axe; instead of using the axe to make another product, Smith, as a specialist in a vast exchange economy, sells his axe for gold (money). Smith, producer of the axe, transfers his right of ownership to Jones, in exchange for a certain amount of Jones's gold - the precise amount of gold being agreed upon voluntarily by the two parties. Jones now takes the axe and fells lumber, then sells the lumber to Johnson for gold; Johnson in turn sells the lumber to Robbins, a contractor, for gold, and Robbins in his turn constructs a house in exchange for the gold of his client, Benton. (It should be evident that this vertical network of exchange could not take place without the use of a monetary medium for the exchanges.)
To complete our picture of a market economy, let us suppose that Jones has cut down his lumber, but has to ship it down-river to transfer it to Johnson; Jones, then, sells the lumber to another intermediary, Polk, who hires the labor services of X, Y, and Z to transport the logs to Johnson. What has happened here, and why doesn't the use of X, Y, and Z's labor in transforming and transporting the logs to a more useful place give them rights to ownership of the logs?
What has happened is this: Polk transfers some gold to X and to Y, and to 2, in return for their selling to him their labor services of transporting the logs. Polk did not sell the logs to these men for money; instead, he "sold" them money in exchange for employing their labor services on his logs. In short, Polk may have bought the logs from Jones for 40 gold ounces, and then paid X, Y, and Z 20 gold ounces each to transport the logs, and then sold the logs to Johnson for 110 ounces of gold. Hence, Polk netted a gain of 10 gold ounces on the entire transaction. X, Y, and Z, if they had so desired, could have purchased the logs from Jones themselves for the 40 ounces, and then shipped the logs themselves, sold them to Johnson for 110 and pocketed the 10 extra ounces. Why didn't they? Because (a) they didn't have the capital; in short, they hadn't saved up the requisite money by reducing their previous consumption sufficiently below their income to accumulate the 40 ounces; and/or (b) they wanted money payment while they worked, and were not willing to wait for the number of months it took for the logs to be shipped and sold; and/or (c) they were unwilling to be saddled with the risk that the logs might indeed not be sale-able for 110 ounces. Thus, the indispensable and enormously important function of Polk, the capitalist in our example of the market economy is to save the laborers from the necessity of restricting their consumption and thus saving up the capital themselves, and from waiting for their pay until the product would (hopefully) be sold at a profit further down the chain of production. Hence, the capitalist, far from somehow depriving the laborer of his rightful ownership of the product, makes possible a payment to the laborer considerably in advance of the sale of the product. Furthermore, the capitalist, in his capacity as forecaster or entrepreneur, saves the laborer from the risk that the product might not be sold at a profit, or that he might even suffer losses.  
The capitalist, then, is a man who has labored, saved out of his labor (i.e. has restricted his consumption) and, in a series of voluntary contracts has (a) purchased ownership rights in capital goods, and (b) paid the laborers for their labor services in transforming those capital goods into goods nearer the final stage of being consumed. Note again that no one is preventing the laborers themselves from saving, purchasing capital goods from their owners and then working on their own capital goods, finally selling the product and reaping the profits. In fact, the capitalists are conferring a great benefit on these laborers, making possible the entire complex vertical network of exchanges in the modern economy. For they save the money needed to buy the capital goods and to pay the laborers in advance of sale for "producing" them further.
At each step of the way then, a man produces - by exerting his labor upon tangible goods. If this good was previously unused and unowned, then his labor automatically brings the good under his control, his "ownership." If the good was already owned by someone else, then the owner may either sell this (capital) good to our laborer for money, after which his labor is exerted on the good; or the previous owner may purchase the labor service for money in order to produce the good further and then sell it to the next buyer. This process, too, reduces back to the original production of unused resources and to labor, since the capitalist - the previous owner in our example - ultimately derived his own ownership from: original production; voluntary exchange; and the saving of money. Thus, all ownership on the free market reduces ultimately back to: (a) ownership by each man of his own person and his own labor; (b) ownership by each man of land which he finds unused and transforms by his own labor; and (c) the exchange of the products of this mixture of (a) and (b) with the similarly-produced output of other persons on the market.
The same law holds true for all ownership, on the market, of the money commodity. As we have seen, money is either (1) produced by one's own labor transforming original resources (e.g., mining gold); or (2) obtained by selling one's own product - or selling goods previously purchased with the proceeds of one's own product - in exchange for gold owned by someone else. Again, just as (c) in the previous paragraph reduces logically back to (a) and (b) production coming before exchange - so here (2) ultimately reduces logically back to (1).
In the free society we have been describing, then, all ownership reduces ultimately back to each man's naturally given ownership over himself, and of the land resources that man transforms and brings into production. The free market is a society of voluntary and consequently mutually beneficial exchanges of ownership titles between specialized producers. It has often been charged that this market economy rests on the wicked doctrine that labor "is treated as a commodity." But the natural fact is that labor service is indeed a commodity, for, as in the case of tangible property, one's own labor service can be alienated and exchanged for other goods and services. A person's labor service is alienable, but his will is not. It is most fortunate, moreover, for mankind that this is so; for this alienability means (1) that a teacher or physician or whatever can sell his labor services for money; and (2) that workers can sell their labor services in transforming goods to capitalists for money. If this could not be done, the structure of capital required for civilization could not be developed, and no one's vital labor services could be purchased by his fellow men. 
The distinction between a man's alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced - for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else's benefit, but he cannot transfer himself, even if he wished, into another man's permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of "voluntary slavery" is indeed a contradictory one, for so long as a laborer remains totally subservient to his master's will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary. But more of coercion later on.
The society that we have been describing in this section - the society of free and voluntary exchanges - may be called the "free society" or the society of "pure liberty." The bulk of this work will be devoted to spelling out the implications of such a system. The term "free market," while properly signifying the critically important network of free and voluntary exchanges, is insufficient when going at all beyond the narrowly economic or praxeologic. For it is vital to realize that the free market is exchanges of titles to property, and that therefore the free market is necessarily embedded in a larger free society - with a certain pattern of property rights and ownership titles. We have been describing the free society as one where property titles are founded on the basic natural facts of man: each individual's ownership by his ego over his own person and his own labor, and his ownership over the land resources which he finds and transforms. The natural alienability of tangible property as well as man's labor service makes possible the network of free exchanges of ownership titles.
The regime of pure liberty - the libertarian society - may be described as a society where no ownership titles are "distributed," where, in short, no man's property in his person or in tangibles is molested, violated, or interfered with by anyone else. But this means that absolute freedom, in the social sense, can be enjoyed, not only by an isolated Crusoe but by every man in any society, no matter how complex or advanced. For every man enjoys absolute freedom - pure liberty - if, like Crusoe, his "naturally" owned property (in his person and in tangibles) is free from invasion or molestation by other men. And, of course, being in a society of voluntary exchanges, each man can enjoy absolute liberty not in Crusoe-like isolation, but in a milieu of civilization, harmony, sociability, and enormously greater productivity through exchanges of property with his fellow men. Absolute freedom, then, need not be lost as the price we must pay for the advent of civilization; men are born free, and need never be in chains. Man may achieve liberty and abundance, freedom and civilization.
This truth will be obscured if we persist in confusing "freedom" or "liberty" with power. We have seen the absurdity of saying that man does not have free will because he has not the power to violate the laws of his nature - because he cannot leap oceans at a single bound. It is similarly absurd to say that a man is not "truly" free in the free society because, in that society, no man is "free" to aggress against another man or to invade his property. Here, again, the critic is not really dealing with freedom but with power; in a free society, no man would be permitted (or none would permit himself) to invade the property of another. This would mean that his power of action would be limited; as man's power is always limited by his nature; it would not mean any curtailment of his freedom. For if we define freedom, again, as the absence of invasion by another man of any man's person or property, the fatal confusion of freedom and power is at last laid to rest. We then see clearly that a supposed "freedom to steal or assault" -in short, to aggress - would not be a state of freedom at all, because it would permit someone, the victim of an assault, to be deprived of his right to person and property -in short, to have his liberty violated. Each man's power, then, is always necessarily limited by the facts of the human condition, by the nature of man and his world; but it is one of the glories of man's condition that each person can be absolutely free, even in a world of complex interaction and exchange. It is still true, moreover, that any man's power to act and do and consume is enormously greater in such a world of complex interaction than it could be in a primitive or Crusoe society.
A vital point: if we are trying to set up an ethic for man (in our case, the subset of ethics dealing with violence), then to be a valid ethic the theory must hold true for all men, whatever their location in time or place. This is one of the notable attributes of natural law - its applicability to all men, regardless of time or place. Thus, ethical natural law takes its place alongside physical or "scientific" natural laws. But the society of liberty is the only society that can apply the same basic rule to every man, regardless of time or place. Here is one of the ways in which reason can select one theory of natural law over a rival theory - just as reason can choose between many economic or other competing theories. Thus, if someone claims that the Hohenzollern or Bourbon families have the "natural right" to rule everyone else, this kind of doctrine is easily refutable by simply pointing to the fact that there is here no uniform ethic for every person: one's rank in the ethical order being dependent on the accident of being, or not being, a Hohenzollern. Similarly, if someone says that every man has a "natural right" to three square meals a day, it is glaringly obvious that this is a fallacious natural law or natural rights theory; for there are innumerable times and places where it is physically impossible to provide three square meals for all, or even for the majority, of the population. Hence this cannot be set forth as some kind of "natural right." On the other hand, consider the universal status of the ethic of liberty, and of the natural right of person and property that obtains under such an ethic. For every person, at any time or place, can be covered by the basic rules: ownership of one's own self, ownership of the previously unused resources which one has occupied and transformed; and ownership of all titles derived from that basic ownership - either through voluntary exchanges or voluntary gifts. These rules - which we might call the "rules of natural ownership" - can clearly be applied, and such ownership defended, regardless of the time or place, and regardless of the economic attainments of the society. It is impossible for any other social system to qualify as universal natural law; for if there is any coercive rule by one person or group over another (and all rule partakes of such hegemony), then it is impossible to apply the same rule for all; only a ruler-less, purely
libertarian world can fulfill the qualifications of natural rights and natural law, or, more important, can fulfill the conditions of a universal ethic for all mankind.

8. Interpersonal Relations: Ownership and Aggression. 
We have so far been discussing the free society, the society of peaceful cooperation and voluntary interpersonal relations. There is, however, another and contrasting type of interpersonal relation: the use of aggressive violence by one man against another. What such aggressive violence means is that one man invades the property of another without the victim's consent. The invasion may be against a man's property in his person (as in the case of bodily assault), or against his property in tangible goods (as in robbery or trespass). In either case, the aggressor imposes his will over the natural property of another - he deprives the other man of his freedom of action and of the full exercise of his natural self-ownership.  
Let us set aside for a moment the corollary but more complex case of tangible property, and concentrate on the question of a man's ownership rights to his own body. Here there are two alternatives: either we may lay down a rule that each man should be permitted (i.e. have the right to) the full ownership of his own body, or we may rule that he may not have such complete ownership. If he does, then we have the libertarian natural law for a free society as treated above. But if he does not, if each man is not entitled to full and 100 percent self-ownership, then what does this imply? It implies either one of two conditions: (1) the "communist" one of Universal and Equal Other-ownership, or (2) Partial Ownership of One Group by Another - a system of rule by one class over another. These are the only logical alternatives to a state of 100 percent self-ownership for all.
Let us consider alternative (2); here, one person or group of persons, G, are entitled to own not only themselves but also the remainder of society, R. But, apart from many other problems and difficulties with this kind of system, we cannot here have a universal or natural-law ethic for the human race. We can only have a partial and arbitrary ethic, similar to the view that Hohenzollerns are by nature entitled to rule over non-Hohenzollerns. Indeed, the ethic which states that Class G is entitled to rule over Class R implies that the latter, R, are subhuman beings who do not have a right to participate as full humans in the rights of self-ownership enjoyed by G - but this of course violates the initial assumption that we are carving out an ethic for human beings as such.
What then of alternative (1)? This is the view that, considering individuals A, B, C ..., no man is entitled to 100 percent ownership of his own person. Instead, an equal part of the ownership of A's body should be vested in B, C ..., and the same should hold true for each of the others. This view, at least, does have the merit of being a universal rule, applying to every person in the society, but it suffers from numerous other difficulties.
In the first place, in practice, if there are more than a very few people in the society, this alternative must break down and reduce to Alternative (2), partial rule by some over others. For it is physically impossible for everyone to keep continual tabs on everyone else, and thereby to exercise his equal share of partial ownership over every other man. In practice, then, this concept of universal and equal other-ownership is Utopian and impossible, and supervision and therefore ownership of others necessarily becomes a specialized activity of a ruling class. Hence, no society which does not have full self-ownership for everyone can enjoy a universal ethic. For this reason alone, 100 percent self-ownership for every man is the only viable political ethic for mankind.
But suppose for the sake of argument that this Utopia could be sustained. What then? In the first place, it is surely absurd to hold that no man is entitled to own himself, and yet to hold that each of these very men is entitled to own a part of all other men! But more than that, would our Utopia be desirable? Can we picture a world in which no man is free to take any action whatsoever without prior approval by everyone else in society? Clearly no man would be able to do anything, and the human race would quickly perish. But if a world of zero or near-zero self-ownership spells death for the human race, then any steps in that direction also contravene the law of what is best for man and his life on earth. And, as we saw above, any ethic where one group is given full ownership of another violates the most elemental rule for any ethic: that it apply to every man. No partial ethics are any better, though they may seem superficially more plausible, than the theory of all- power-to-the-Hohenzollerns. 
In contrast, the society of absolute self-ownership for all rests on the primordial fact of natural self-ownership by every man, and on the fact that each man may only live and prosper as he exercises his natural freedom of choice, adopts values, learns how to achieve them, etc. By virtue of being a man, he must use his mind to adopt ends and means; if someone aggresses against him to change his freely-selected course, this violates his nature; it violates the way he must function. In short, an aggressor interposes violence to thwart the natural course of a man's freely adopted ideas and values, and to thwart his actions based upon such values.
We cannot fully explain the natural laws of property and of violence without expanding our discussion to cover tangible property. For men are not floating wraiths; they are beings who can only survive by grappling with and transforming material objects. Let us return to our island of Crusoe and Friday. Crusoe, isolated at first, has used his free will and self-ownership to learn about his wants and values, and how to satisfy them by transforming nature-given resources through "mixing" them with his labor. He has thereby produced and created property. Now suppose that Friday lands in another part of this island. He confronts two possible courses of action: he may, like Crusoe, become a producer, transform unused soil by his labor, and most likely exchange his product for that of the other man. In short, he may engage in production and exchange, in also creating property. Or, he may decide upon another course: he may spare himself the effort of production and exchange, and go over and seize by violence the fruits of Crusoe's labor. He may aggress against the producer.
If Friday chooses the course of labor and production, then he in natural fact, as in the case of Crusoe, will own the land area which he clears and uses, as well as the fruits of its product. But, as we have noted above, suppose that Crusoe decides to claim more than his natural degree of ownership, and asserts that, by virtue of merely landing first on the island, he "really" owns the entire island, even though he had made no previous use of it. If he does so, then he is, in our view, illegitimately pressing his property claim beyond its homesteading natural law boundaries, and if he uses that claim to try to eject Friday by force, then he is illegitimately aggressing against the person and property of the second homesteader. 
Some theorists have maintained - in what we might call the "Columbus complex" - that the first discoverer of a new, unowned island or continent can rightfully own the entire area by simply asserting his claim. (In that case, Columbus, if in fact he had actually landed on the American continent and if there had been no Indians living there - could have rightfully asserted his private "ownership" of the entire continent.) In natural fact, however, since Columbus would only have been able actually to use, to "mix his labor with," a small part of the continent, the rest then properly continues to be unowned until the next homesteaders arrive and carve out their rightful property in parts of the continent.
Let us turn from Crusoe and Friday and consider the question of a sculptor who has just created a work of sculpture by transforming clay and other materials (and let us for the moment waive the question of property rights in the clay and the tools). The question now becomes: who should properly own this work of art as it emerges from the fashioning of the sculptor? Once again, as in the case of the ownership of people's bodies, there are only three logical positions: (1) that the sculptor, the "creator" of the work of art, should have the property right in his creation; (2) that another man or group of men have the right in that creation, i.e. to expropriate it by force without the sculptor's consent; or (3) the "communist" solution - that every individual in the world has an equal, quota right to share in the ownership of the sculpture.
Put this starkly, there are very few people who would deny the monstrous injustice in either a group or the world community seizing ownership of the sculpture. For the sculptor has in fact "created" this work of art - not of course in the sense that he has created matter, but that he has produced it by transforming nature-given matter (the clay) into another form in accordance with his own ideas and his own labor and energy. Surely, if every man has the right to own his own body and if he must use and transform material natural objects in order to survive, then he has the right to own the product that he has made, by his energy and effort, into a veritable extension of his own personality. Such is the case of the sculptor, who has placed the stamp of his own person on the raw material, by "mixing his labor" with the clay. But if the sculptor has done so, then so has every producer who has "homesteaded" or mixed his labor with the objects of nature.
Any group of people who expropriated the work of the sculptor would be clearly aggressive and parasitical - benefitting at the expense of the expropriated. As most people would agree, they would be clearly violating the right of the sculptor to his product - to the extension of his personality. And this would be true whether a group or the "world commune" did the expropriation - except that, as in the case of communal ownership of persons. (In practice this expropriation would have to be performed by a group of men in the name of the "world community.") But, as we have indicated, if the sculptor has the right to his own product, or transformed materials of nature, then so have the other producers. So have the men who extracted the clay from the ground and sold it to the sculptor, or the men who produced the tools with which he worked on the clay. For these men, too, were producers; they too, mixed their ideas and their techno- logical know-how with the nature-given soil to emerge with a valued product. They, too, have mixed their labor and energies with the soil. And so, they, too, are entitled to the ownership of the goods they produced.)
If every man has the right to own his own person and therefore his own labor, and if by extension he owns whatever property he has "created" or gathered out of the previously unused, unowned state of nature, then who has the right to own or control the earth itself? In short, if the gatherer has the right to own the acorns or berries he picks, or the farmer his crop of wheat, who has the right to own the land on which these activities have taken place? Again, the justification for the ownership of ground land is the same for that of any other property. For no man actually ever "creates" matter: what he does is to take nature-given matter and transform it by means of his ideas and labor energy. But this is precisely what the pioneer - the homesteader -does when he clears and uses previously unused virgin land and brings it into his private ownership. The homesteader -just as the sculptor, or miner - has transformed the nature-given soil by his labor and his personality. The homesteader is just as much a "producer" as the others, and therefore just as legitimately the owner of his property. As in the case of the sculptor, it is difficult to see the morality of some other group expropriating the product and labor of the homesteader. (And, as in the other cases, the "world communist" solution boils down in practice to a ruling group.) Furthermore, the land communalists, who claim that the entire world population really owns the land in common, run up against the natural fact that before the homesteader, no one really used and controlled, and hence owned the land. The pioneer, or homesteader, is the man who first brings the valueless unused natural objects into production and use. 
And so, there are only two paths for man to acquire property and wealth: 
production or coercive expropriation. Or, as the great German sociologist Franz Oppenheimer perceptively put it, there are only two means to the acquisition of wealth. One is the method of production, generally followed by voluntary exchange of such products: this is what Oppenheimer called the economic means. The other method is the unilateral seizure of the products of another: the expropriation of another man's property by violence. This predatory method of getting wealth Oppenheimer aptly termed the political means. 
Now the man who seizes another's property is living in basic contradiction to his own nature as a man. For we have seen that man can only live and prosper by his own production and exchange of products. The aggressor, on the other hand, is not a producer at all but a predator; he lives parasitically off the labor and product of others. Hence, instead of living in accordance with the nature of man, the aggressor is a parasite who feeds unilaterally by exploiting the labor and energy of other men. Here is clearly a complete violation of any kind of universal ethic, for man clearly cannot live as a parasite; parasites must have non-parasites, producers, to feed upon. The parasite not only fails to add to the social total of goods and services, he depends completely on the production of the host body. And yet, any increase in coercive parasitism decreases ipso facto the quantity and the output of the producers, until finally, if the producers die out, the parasites will quickly follow suit.
Thus, parasitism cannot be a universal ethic, and, in fact, the growth of parasitism attacks and diminishes the production by which both host and parasite survive. Coercive exploitation or parasitism injure the processes of production for everyone in the society. Any way that it may be considered, parasitic predation and robbery violate not only the nature of the victim whose self and product are violated, but also the nature of the aggressor himself, who abandons the natural way of production - of using his mind to transform nature and exchange with other producers - for the way of parasitic expropriation of the work and product of others. In the deepest sense, the aggressor injures himself as well as his unfortunate victim. This is fully as true for the complex modern society as it is for Crusoe and Friday on their island. 
There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one's own labor and the forcible appropriation of the labor of others. ...I propose ...to call one's own labor and the equivalent exchange of one's own labor for the labor of others, the "economic means" for the satisfaction of needs, while the unrequited appropriation of the labor of others will be called the "political means."

9. Property and Criminality.
We may define anyone who aggresses against the person or other produced property of another as a criminal. A criminal is anyone who initiates violence against another man and his property: anyone who uses the coercive "political means" for the acquisition of goods and services.
Now, however, critical problems arise; we are now indeed at the very heart of the entire problem of liberty, property, and violence in society. A crucial question - and one which has unfortunately been almost totally neglected by libertarian theorists - may be illustrated by the following examples:
Suppose we are walking down the street and we see a man, A, seizing B by the wrist and grabbing B's wristwatch. There is no question that A is here violating both the person and the property of B. Can we then simply infer from this scene that A is a criminal aggressor, and B his innocent victim?
Certainly not - for we don't know simply from our observation whether A is indeed a thief, or whether A is merely repossessing his own watch from B who had previously stolen it from him. In short, while the watch had undoubtedly been B's property until the moment of A's attack, we don't know whether or not A had been the legitimate owner at some earlier time, and had been robbed by B. Therefore, we do not yet know which one of the two men is the legitimate or just property owner. We can only find the answer through investigating the concrete data of the particular case, i.e., through "historical" inquiry.
Thus, we cannot simply say that the great axiomatic moral rule of the libertarian society is the protection of property rights, period. For the criminal has no natural right whatever to the retention of property that he has stolen; the aggressor has no right to claim any property that he has acquired by aggression. Therefore, we must modify or rather clarify the basic rule of the libertarian society to say that no one has the right to aggress against the legitimate or just property of another.
In short, we cannot simply talk of defense of "property rights" or of "private property" per se. For if we do so, we are in grave danger of defending the "property right" of a criminal aggressor - in fact, we logically must do so. We may therefore only speak of just property or legitimate property or perhaps "natural property." And this means that, in concrete cases, we must decide whether any single given act of violence is aggressive or defensive: e.g., whether it is a case of a criminal robbing a victim, or of a victim trying to repossess his property.
Another vital implication of this way of looking at the world is to invalidate totally the utilitarian way of looking at property rights and therefore of looking at the free market. For the utilitarian, who has no conception, let alone theory, of justice, must fall back on the pragmatic, ad hoc view that all titles to private property currently existing at any time or place must be treated as valid and accepted as worthy of defense against violation. This, in fact, is the way utilitarian free-market economists invariably treat the question of property rights. Note, however, that the utilitarian has managed to smuggle into his discussion an unexamined ethic: that all goods "now" (the time and place at which the discussion occurs) considered private property must be accepted and defended as such. In practice, this means that all private property titles designated by any existing government (which has everywhere seized the monopoly of defining titles to property) must be accepted as such. This is an ethic that is blind to all considerations of justice, and, pushed to its logical conclusion, must also defend every criminal in the property that he has managed to expropriate. We conclude that the utilitarian's simply praising a free market based upon all existing property titles is invalid and ethically nihilistic. 
I am convinced, however, that the real motor for social and political change in our time has been a moral indignation arising from the fallacious theory of surplus value: that the capitalists have stolen the rightful property of the workers, and therefore that existing titles to accumulated capital are unjust. Given this hypothesis, the remainder of the impetus for both Marxism and anarcho-syndicalism follow quite logically. From an apprehension of what appears to be monstrous injustice flows the call for "expropriation of the expropriators," and, in both cases, for some form of "reversion" of the ownership and the control of the property to the workers. Their arguments cannot be successfully countered by the maxims of utilitarian economics or philosophy, but only by dealing forthrightly with the moral problem, with the problem of the justice or injustice of various claims to property.
Neither can Marxist views be rebutted by utilitarian paeans to the virtues of "social peace." Social peace is all very well, but true peace is essentially the quiet, unmolested enjoyment of one's legitimate property, and if a social system is founded upon monstrously unjust property titles, not molesting them is not peace but rather the enshrinement and entrenchment of permanent aggression. Neither can the Marxists be rebutted by pointing the finger at their use of violent methods of overthrow. It is, to be sure, a consistent creed -though one that I do not share that no violence should ever be used by anyone against anyone else: even by a victim against a criminal. But this Tolstoyan-Gandhian moral position is really irrelevant here. For the point at question is whether or not the victim has a moral right to employ violence in defending his person or property against criminal attack or in repossessing property from the criminal. The Tolstoyan may concede that the victim has such a right but may try to persuade him not to exercise that right in the name of a higher morality. But this takes us afield from our discussion into broader reaches of ethical philosophy. I would only add here that any such total objector to violence must then be consistent and advocate that no criminal ever be punished by the use of violent means. And this implies, let us note, not only abstaining from capital punishment but from all punishment whatsoever, and, indeed, from all methods of violent defense that might conceivably injure an aggressor. In short, to employ that horrid cliche to which we shall have occasion to return, the Tolstoyan may not use force to prevent someone from raping his sister.  
The point here is that only Tolstoyans are entitled to object to the violent overthrow of an entrenched criminal group; for everyone who is not a Tolstoyan favors the use of force and violence to defend against and punish criminal aggression. He must therefore favor the morality, if not the wisdom, of using force to overthrow entrenched criminality. If so, then we are pushed immediately back to the really important question: who is the criminal, and therefore who is the aggressor? Or, in other words, against whom is it legitimate to use violence? And if we concede that capitalist property is morally illegitimate, then we cannot deny the right of the workers to employ whatever violence may be necessary to seize the property, just as A, in our above example, would have been within his rights in forcibly repossessing his watch if B had stolen it previously.
The only genuine refutation of the Marxian case for revolution, then, is that capitalists' property is just rather than unjust, and that therefore its seizure by workers or by anyone else would in itself be unjust and criminal. But this means that we must enter into the question of the justice of property claims, and it means further that we cannot get away with the easy luxury of trying to refute revolutionary claims by arbitrarily placing the mantle of "justice" upon any and all existing property titles. Such an act will scarcely convince people who believe that they or others are being grievously oppressed and permanently aggressed against. But this also means that we must be prepared to discover cases in the world where violent expropriation of existing property titles will be morally justified, because these titles are themselves unjust and criminal.
Let us again use an example to make our thesis clear. To use Ludwig von Mises's excellent device for abstracting from emotionalism, let us take a hypothetical country, "Ruritania." Let us say that Ruritania is ruled by a king who has grievously invaded the rights of persons and the legitimate property of individuals, and has regulated and finally seized their property. A libertarian movement develops in Ruritania, and comes to persuade the bulk of the populace that this criminal system should be replaced by a truly libertarian society, where the rights of each man to his person and his found and created property are fully respected. The king, seeing the revolt to be imminently successful, now employs a cunning stratagem. He proclaims his government to be dissolved, but just before doing so he arbitrarily parcels out the entire land area of his kingdom to the "ownership" of himself and his relatives. He then goes to the libertarian rebels and says: "all right, I have granted your wish, and have dissolved my rule; there is now no more violent intervention in private property. However, myself and my eleven relatives now each own one-twelfth of Ruritania, and if you disturb us in this ownership in any way, you shall be infringing upon the sanctity of the very fundamental principle that you profess: the inviolability of private property. Therefore, while we shall no longer be imposing 'taxes,' you must grant each of us the right to impose any 'rents' that we may wish upon our 'tenants', or to regulate the lives of all the people who presume to live on 'our' property as we see fit. In this way, taxes shall be fully replaced by 'private rents'!"
Now what should be the reply of the libertarian rebels to this pert challenge? If they are consistent utilitarians, they must bow to this subterfuge, and resign themselves to living under a regime no less despotic than the one they had been battling for so long. Perhaps, indeed, more despotic, for now the king and his relatives can claim for themselves the libertarians' very principle of the absolute right of private property, an absolute-ness which they might not have dared to claim before.
It should be clear that for the libertarians to refute this stratagem they must take their stand on a theory of just versus unjust property; they cannot remain utilitarians. They would then say to the king: "We are sorry, but we only recognize private property claims that are just - that emanate from an individual's fundamental natural right to own himself and the property which he has either transformed by his energy or which has been voluntarily given or bequeathed to him by such transformers. We do not, in short, recognize anyone's right to any given piece of property purely on his or anyone else's arbitrary say-so that it is his own. There can be no natural moral right derivable from a man's arbitrary claim that any property is his. Therefore, we claim the right to expropriate the 'private' property of you and your relations, and to return that property to the individual owners against whom you aggressed by imposing your illegitimate claim."
One corollary that flows from this discussion is of vital importance for a theory of liberty. This is that, in the deepest sense, all property is "private". For all property belongs to, is controlled by, some individual persons or groups of persons. If B stole a watch from A, then the watch was B's private "property" - was under his control and de facto ownership - so long as he was allowed to possess and use it. Therefore, whether the watch was in the hands of A or B, it was in private hands -in some cases, legitimate-private, in others criminal-private, but private just the same.
As we shall see further below, the same holds for individuals forming themselves into any sort of group. Thus, when they formed the government, the king and his relatives controlled - and therefore at least partially "owned" - the property of the persons against whom they were aggressing. When they parceled out the land into the "private" property of each, they again shared in owning the country, though in formally different ways. The form of private property differed in the two cases, but not the essence. Thus, the crucial question in society is not, as so many believe, whether property should be private or governmental, but rather whether the necessarily "private" owners are legitimate owners or criminals. For, ultimately, there is no entity called "government"; there are only people forming themselves into groups called "governments" and acting in a "governmental" manner. All property is therefore always "private"; the only and critical question is whether it should reside in the hands of criminals or of the proper and legitimate owners. There is really only one reason for libertarians to oppose the formation of governmental property or to call for its divestment: the realization that the rulers of government are unjust and criminal owners of such property. 
In short, the laissez-faire utilitarian cannot simply oppose "government" ownership and defend private; for the trouble with governmental property is not so much that it is governmental (for what of "private" criminals like our watch-stealer?) but that it is illegitimate, unjust, and criminal - as in the case of our Ruritanian king. And since "private" criminals are also reprehensible, we see that the social question of property cannot ultimately be treated in utilitarian terms as either private or governmental. It must be treated in terms of justice or injustice: of legitimate property-owners vs. illegitimate, criminal invaders of such property, whether these invaders are called "private" or "public." The libertarian may now be getting rather worried. He may say: "granted that you are right in principle, that property titles must be validated by justice, and that neither the criminal may be allowed to keep the stolen watch, nor the king and his relatives 'their' country, how can your principle be applied in practice? Wouldn't this involve a chaotic inquiry into everyone's property title, and furthermore, what criterion can you establish for the justice of these titles?"
The answer is that the criterion holds as we have explained above: The right of every individual to own his person and the property that he has found and transformed, and therefore "created," and the property which he has acquired either as gifts from or in voluntary exchange with other such transformers or "producers." It is true that existing property titles must be scrutinized, but the resolution of the problem is much simpler than the question assumes. For remember always the basic principle: that all resources, all goods, in a state of no-ownership belong properly to the first person who finds and transforms them into a useful good (the "homestead" principle). We have seen this above in the case of unused land and natural resources: the first to find and mix his labor with them, to possess and use them, "produces" them and becomes their legitimate property owner. Now suppose that Mr. Jones has a watch; if we cannot clearly show that Jones or his ancestors to the property title in the watch were criminals, then we must say that since Mr. Jones has been possessing and using it, that he is truly the legitimate and just property owner.
Or, to put the case another way: if we do not know if Jones's title to any given property is criminally derived, then we may assume that this property was, at least momentarily in a state of no-ownership (since we are not sure about the original title), and therefore that the proper title of ownership reverted instantaneously to Jones as its "first" (i.e., current) possessor and user. In short, where we are not sure about a title but it cannot be clearly identified as criminally derived, then the title properly and legitimately reverts to its current possessor.
But now suppose that a title to property is clearly identifiable as criminal, does this necessarily mean that the current possessor must give it up? No, not necessarily. For that depends on two considerations: (a) whether the victim (the property owner originally aggressed against) or his heirs are clearly identifiable and can now be found; or (b) whether or not the current possessor is himself the criminal who stole the property. Suppose, for example, that Jones possesses a watch, and that we can clearly show that Jones's title is originally criminal, either because (1) his ancestor stole it, or (2) because he or his ancestor purchased it from a thief (whether wittingly or unwittingly is immaterial here). Now, if we can identify and find the victim or his heir, then it is clear that Jones's title to the watch is totally invalid, and that it must promptly revert to its true and legitimate owner. Thus, if Jones inherited or purchased the watch from a man who stole it from Smith, and if Smith or the heir to his estate can be found, then the title to the watch properly reverts immediately back to Smith or his descendants, without compensation to the existing possessor of the criminally derived "title". Thus, if a current title to property is criminal in origin, and the victim or his heir can be found, then the title should immediately revert to the latter.
Suppose, however, that condition (a) is not fulfilled: in short, that we know that Jones's title is criminal, but that we cannot now find the victim or his current heir. Who now is the legitimate and moral property owner? The answer to this question now depends on whether or not Jones himself is the criminal, whether Jones is the man who stole the watch. If Jones was the thief, then it is quite clear that he cannot be allowed to keep it, for the criminal cannot be allowed to keep the reward of his crime; and he loses the watch, and probably suffers other punishments besides. In that case, who gets the watch? Applying our libertarian theory of property, the watch is now - after Jones has been apprehended - in a state of no-ownership, and it must therefore become the legitimate property of the first person to "homestead" it - to take it and use it, and therefore, to have converted it from an unused, no-ownership state to a useful, owned state. The first person who does so then becomes its legitimate, moral, and just owner.
But suppose that Jones is not the criminal, not the man who stole the watch, but that he had inherited or had innocently purchased it from the thief. And suppose, of course, that neither the victim nor his heirs can be found. In that case, the disappearance of the victim means that the stolen property comes properly into a state of no-ownership. But we have seen that any good in a state of no-ownership, with no legitimate owner of its title, reverts as legitimate property to the first person to come along and use it, to appropriate this now unowned resource for human use. But this "first" person is clearly Jones, who has been using it all along. Therefore, we conclude that even though the property was originally stolen, that if the victim or his heirs cannot be found, and if the current possessor was not the actual criminal who stole the property, then title to that property belongs properly, justly, and ethically to its current possessor.
To sum up, for any property currently claimed and used: (a) if we know clearly that there was no criminal origin to its current title, then obviously the current title is legitimate, just and valid; (b) if we don't know whether the current title had any criminal origins, but can't find out either way, then the hypothetically "unowned" property reverts instantaneously and justly to its current possessor; (c) if we do know that the title is originally criminal, but can't find the victim or his heirs, then (c1)if the current title-holder was not the criminal aggressor against the property, then it reverts to him justly as the first owner of a hypothetically unowned property. But (c2) if the current titleholder is himself the criminal or one of the criminals who stole the property, then clearly he is properly to be deprived of it, and it then reverts to the first man who takes it out of its unowned state and appropriates it for his use. And finally, (d) if the current title is the result of crime, and the victim or his heirs can be found, then the title properly reverts immediately to the latter, without compensation to the criminal or to the other holders of the unjust title.
It might be objected that the holder or holders of the unjust title (in the cases where they are not themselves the criminal aggressors) should be entitled to the property which they added on to the property which was not justly theirs, or, at the very least, to be compensated for such additions. In reply, the criterion should be whether or not the addition is separable from the original property in question. Suppose, for example, that Brown steals a car from Black, and that Brown sells the car to Robinson. In our view, then, the car must be returned immediately to the true owner, Black, without compensation to Robinson. Being a victim of a theft should not impose obligations on Black to recompense someone else. Of course, Robinson has a legitimate complaint against the car-thief Brown, and should be able to sue Brown for repayment or damages on the basis of the fraudulent contract that Brown had foisted upon him (pretending that the car was really Brown's property to sell). But suppose that Robinson, in the course of his possession of the car, had added a
new car radio; since the radio is separable from the car, he should be able to extract the radio as legitimately his own before returning the car to Black. On the other hand, if the addition is not separable, but an integral part of the property (e.g., a repaired engine), then Robinson should not be able to demand any payment or property from Black (although perhaps he may be able to do so by suing Brown). Similarly if Brown had stolen a parcel of land from Black, and sold it to Robinson, the criterion should again be the separability of any additions Robinson had made to the property. If, for example, Robinson had built some buildings on the property, then he should be able to move the buildings or demolish them before turning the land over to the original landowner, Black.
Our example of the stolen car enables us to see immediately the injustice of the current legal concept of the "negotiable instrument". In current law, the stolen car would indeed revert to the original owner with no obligation on the owner's part to compensate the current holder of the unjust title. But the State has designated certain goods as "negotiable instruments" (e.g., dollar bills) which the non-criminal recipient or buyer is now deemed to own, and who cannot be forced to return them to the victim. Special legislation has also made pawnbrokers into a similarly privileged class; so that if Brown steals a typewriter from Black, and then pawns it with Robinson, the pawnbroker may not be forced to return the typewriter to its just property owner, Black.
To some readers, our doctrine may seem harsh on good-faith recipients of goods which later turn out to be stolen and unjustly possessed. But we should remember that, in the case of land purchase, title searches are a common practice, as well as title insurance against such problems. In the libertarian society, presumably the business of title search and title insurance will become more extensive to apply to the wider areas of the protection of the rights of just and private property.
We see, then, that, properly developed libertarian theory neither joins the utilitarians in placing an arbitrary and indiscriminate ethical blessing upon every current property title, nor does it open the morality of existing titles to total uncertainty and chaos. On the contrary, from the fundamental axiom of the natural right of every man to property in his self and in the unowned resources which he finds and transforms into use, libertarian theory deduces the absolute morality and justice of all current titles to property except where the origin of the current titles is criminal, and (1) the victim or his heirs can be identified and found, or (2) the victim cannot be found but the current title-holder is the criminal in question. In the former case, the property reverts in common justice to the victim or his heirs; in the latter, it becomes the property of the first appropriator to alter its unowned state.
We thus have a theory of the rights of property: that every man has an absolute right to the control and ownership of his own body, and to unused land resources that he finds and transforms. He also has the right to give away such tangible property (though he cannot alienate control over his own person and will) and to exchange it for the similarly derived properties of others. Hence, all legitimate property-right derives from every man's property in his own person, as well as the "homesteading" principle of unowned property rightly belonging to the first possessor.
We also have a theory of criminality: a criminal is someone who aggresses against such property. Any criminal titles to property should be invalidated and turned over to the victim or his heirs; if no such victims can be found, and if the current possessor is not himself the criminal, then the property justly reverts to the current possessor on our basic "homesteading" principle.
Let us now see how this theory of property may be applied to different categories of property. The simplest case, of course, is property in persons. The fundamental axiom of libertarian theory is that each person must be a self-owner, and that no one has the right to interfere with such self-ownership. From this there follows immediately the total impermissibility of property in another person. One prominent example of this sort of property is the institution of slavery. Before 1865, for example, slavery was a "private property" title to many persons in the United States. The fact of such private title did not make it legitimate; on the contrary, it constituted a continuing aggression, a continuing criminality, of the masters (and of those who helped enforce their titles) against their slaves. For here the victims were immediately and clearly identifiable, and the master was every day committing aggression against his slaves. We should also point out that, as in our hypothetical case of the king of Ruritania, utilitarianism provides no firm basis for vacating the "property right" of a master in his slaves.
When slavery was a common practice, much discussion raged as to whether or how much the master should be monetarily compensated for the loss of his slaves if slavery were to be abolished. This discussion was palpably absurd. For what do we do when we have apprehended a thief and recovered a stolen watch: do we compensate the thief for the loss of the watch, or do we punish him? Surely, the enslavement of a man's very person and being is a far more heinous crime than the theft of his watch, and should be dealt with accordingly. As the English classical liberal Benjamin Pearson commented acidly: "the proposal had been made to compensate the slaveowners and he had thought it was the slaves who should have been compensated."  And clearly, such compensation could only justly have come from the slaveholders themselves, and not from the ordinary taxpayers.
It should be emphasized that on the question of slavery, whether or not it should have been abolished immediately is irrelevant to problems of social disruption, of the sudden impoverishing of slave masters, or of the flowering of Southern culture, let alone the question-interesting, of course, on other grounds-whether slavery was good for the soil, and for the economic growth of the South, or would have disappeared in one or two generations. For the libertarian, for the person who believes in justice, the sole consideration was the monstrous injustice and continuing aggression of slavery, and therefore the necessity of abolishing the institution as soon as it could be accomplished.

10. The Problem of Land Theft.
A particularly important application of our theory of property titles is the case of landed property. For one thing, land is a fixed quotal portion of the earth, and therefore the ground land endures virtually permanently. Historical investigation of land titles therefore would have to go back much further than for other more perishable goods. However, this is by no means a critical problem, for, as we have seen, where the victims are lost in antiquity, the land properly belongs to any non-criminals who are in current possession. Suppose, for example, that Henry Jones I stole a piece of land from its legitimate owner, James Smith. What is the current status of the title of current possessor Henry Jones X? Or of the man who might be the current possessor by purchasing the land from Henry Jones X? If Smith and his descendants are lost to antiquity, then title to the land properly and legitimately belongs to the current Jones (or the man who has purchased it from him), in direct application of our theory of property titles.
A second problem, and one that sharply differentiates land from other property, is that the very existence of capital goods, consumers goods, or the monetary commodity, is at least a prima facie demonstration that these goods had been used and transformed, that human labor had been mixed with natural resources to produce them. For capital goods, consumer goods, and money do not exist by themselves in nature; they must be created by human labor's alteration of the given conditions of nature. But any area of land, which is given by nature, might never have been used and transformed; and therefore, any existing property title to never-used land would have to be considered invalid. For we have seen that title to an unowned resource (such as land) comes properly only from the expenditure of labor to transform that resource into use. Therefore, if any land has never been so transformed, no one can legitimately claim its ownership.
Suppose, for example, that Mr. Green legally owns a certain acreage of land, of which the northwest portion has never been transformed from its natural state by Green or by anyone else. Libertarian theory will morally validate his claim for the rest of the land -provided, as the theory requires, that there is no identifiable victim (or that Green had not himself stolen the land.) But libertarian theory must invalidate his claim to ownership of the northwest portion. Now, so long as no "settler" appears who will initially transform the northwest portion, there is no real difficulty; Brown's claim may be invalid but it is also mere meaningless verbiage. He is not yet a criminal aggressor against anyone else. But should another man appear who does transform the land, and should Green oust him by force from the property (or employ others to do so), then Green becomes at that point a criminal aggressor against land justly owned by another. The same would be true if Green should use violence to prevent another settler from entering upon this never-used land and transforming it into use.
Thus, to return to our Crusoe "model", Crusoe, landing upon a large island, may grandiosely trumpet to the winds his "ownership" of the entire island. But, in natural fact, he owns only the part that he settles and transforms into use. Or, as noted above, Crusoe might be a solitary Columbus landing upon a newly-discovered continent. But so long as no other person appears on the scene, Crusoe's claim is so much empty verbiage and fantasy, with no foundation in natural fact. But should a newcomer - a Friday - appear on the scene, and begin to transform unused land, then any enforcement of Crusoe's invalid claim would constitute criminal aggression against the newcomer and invasion of the latter's property rights.
Note that we are not saying that, in order for property in land to be valid, it must be continually in use. The only requirement is that the land be once put into use, and thus become the property of the one who has mixed his labor with, who imprinted the stamp of his personal energy upon, the land. After that use, there is no more reason to disallow the land's remaining idle than there is to disown someone for storing his watch in a desk drawer. 
One form of invalid land title, then, is any claim to land that has never been put into use. The enforcement of such a claim against a first-user then becomes an act of aggression against a legitimate property right. In practice, it must be noted, it is not at all difficult to distinguish land in its natural virgin state from land that has at some time been transformed by man for his use. The hand of man will in some way be evident.
One problem, however, that sometimes arises in the validity of land titles is the question of "adverse possession." Let us suppose that a man, Green, comes upon a section of land not obviously owned by someone - there is no fence perhaps, and no one on the premises. Green assumes that the land is unowned; he proceeds to work the land, uses it for a length of time, and then the original owner of the land appears on the scene and orders Green's eviction. Who is right? The common law of adverse possession arbitrarily sets a time span of twenty years, after which the intruder, despite his aggression against the property of another, retains absolute ownership of the land. But our libertarian theory holds that land needs only to be transformed once by man to pass into private ownership. Therefore, if Green comes upon land that in any way bears the mark of a former human use, it is his responsibility to assume that the land is owned by someone. Any intrusion upon his land, without further inquiry, must be done at the risk of the newcomer being an aggressor. It is of course possible that the previously owned land has been abandoned; but the newcomer must not assume blithely that land which has obviously been transformed by man is no longer owned by anyone. He must take steps to find out if his new title to the land is clear, as we have seen is in fact done in the title-search business. On the other hand, if Green comes upon land that has obviously never been transformed by anyone, he can move onto it at once and with impunity, for in the libertarian society no one can have a valid title to land that has never been transformed.
In the present world, when most land areas have been pressed into service, the invalidating of land titles from never being used would not be very extensive. More important nowadays would be invalidating a land title because of a continuing seizure of landed property by aggressors. We have already discussed the case of Jones's ancestors having seized a parcel of land from the Smith family, while Jones uses and owns the land in the present day. But suppose that centuries ago, Smith was tilling the soil and therefore legitimately owning the land; and then that Jones came along and settled down near Smith, claiming by use of coercion the title to Smith's land, and extracting payment or "rent" from Smith for the privilege of continuing to till the soil. Suppose that now, centuries later, Smith's descendants (or, for that matter, other unrelated families) are now tilling the soil, while Jones's descendants, or those who purchased their claims, still continue to exact tribute from the modern tillers. Where is the true property right in such a case? It should be clear that here, just as in the case of slavery, we have a case of continuing aggression against the true owners - the true possessors - of the land, the tillers, or peasants, by the illegitimate owner, the man whose original and continuing claim to the land and its fruits has come from coercion and violence. Just as the original Jones was a continuing aggressor against the original Smith, so the modern peasants are being aggressed against by the modern holder of the Jones-derived land title. In this case of what we might call "feudalism" or "land monopoly," the feudal or monopolist landlords have no legitimate claim to the property. The current "tenants," or peasants, should be the absolute owners of their property, and, as in the case of slavery, the land titles should be transferred to the peasants, without compensation to the monopoly landlords. 
Note that "feudalism," as we have defined it, is not restricted to the case where the peasant is also coerced by violence to remain on the lord's land to keep cultivating it (roughly, the institution of serfdom). Nor is it restricted to cases where additional measures of violence are used to bolster and maintain feudal landholdings (such as the State's prevention by violence of any landlord's sale or bequest of his land into smaller subdivisions). All that "feudalism," in our sense, requires is the seizure by violence of landed property from its true owners, the transformers of land, and the continuation of that kind of relationship over the years. Feudal land rent, then, is the precise equivalent of paying a continuing annual tribute by producers to their predatory conquerors. Feudal land rent is therefore a form of permanent tribute. Note also that the peasants in question need not be the descendants of the original victims. For since the aggression is continuing so long as this relation of feudal aggression remains in force, the current peasants are the contemporary victims and the currently legitimate property owners. In short, in the case of feudal land, or land monopoly both of our conditions obtain for invalidating current property titles: For not only the original but also the current land title is criminal, and the current victims can very easily be identified. 
Our above hypothetical case of the King of Ruritania and his relatives is one example of a means by which feudalism can get started in a land area. After the king's action, he and his relatives become feudal landlords of their quotal portions of Ruritania, each one extracting coercive tribute in the form of feudal "rent" from the inhabitants.
We do not of course mean to imply that all land rent is illegitimate and a form of continuing tribute. On the contrary there is no reason, in a libertarian society, why a person transforming land may not then rent it out or sell it to someone else; indeed, that is precisely what will occur. How, then, can we distinguish between feudal rent and legitimate rent, between feudal tenancies and legitimate tenancies? Again, we apply our rules for deciding upon the validity of property titles: we look to see if the origin of the land title is criminal, and, in the current case, whether the aggression upon the producers of the land, the peasants, is still continuing. If we know that these conditions hold, then there is no problem, for the identification of both aggressor and victim is remarkably clear-cut. But if we don't know whether these conditions obtain, then (applying our rule), lacking a clear identifiability of the criminal, we conclude that the land title and the charge of rent is just and legitimate and not feudal. In practice, since in a feudal situation criminality is both old and continuing, and the peasant-victims are readily identifiable,
feudalism is one of the easiest forms of invalid title to detect.

11. Land Monopoly, Past and Present. 
Thus, there are two types of ethically invalid land titles: "feudalism," in which there is continuing aggression by titleholders of land against peasants engaged in transforming the soil; and land-engrossing, where arbitrary claims to virgin land are used to keep first transformers out of that land. We may call both of these aggressions "land monopoly" - not in the sense that some one person or group owns all the land in society, but in the sense that arbitrary privileges to land ownership are asserted in both cases, clashing with the libertarian rule of non-ownership of land except by actual transformers, their heirs, and their assigns. 
Land monopoly is far more widespread in the modern world than most people - especially most Americans -believe. In the undeveloped world, especially in Asia, the Middle East, and Latin America, feudal landholding is a crucial social and economic problem - with or without quasi-serf impositions on the persons of the peasantry. Indeed, of the countries of the world, the United States is one of the very few virtually free from feudalism, due to a happy accident of its historical development. Largely escaping feudalism itself, it is difficult for Americans to take the entire problem seriously. This is particularly true of American laissez-faire economists, who tend to confine their recommendations for the backward countries to preachments about the virtues of the free market. But these preachments naturally fall on deaf ears, because "free market" for American conservatives obviously does not encompass an end to feudalism and land monopoly and the transfer of title to these lands, without compensation, to the peasantry. And yet, since agriculture is always the overwhelmingly most important industry in the undeveloped countries, a truly free market, a truly libertarian society devoted to justice and property rights, can only be established there by ending unjust feudal claims to property. But utilitarian economists, grounded on no ethical theory of property rights, can only fall back on defending whatever status quo may happen to exist - in this case, unfortunately, the status quo of feudal suppression of justice and of any genuinely free market in land or agriculture. This ignoring of the land problem means that Americans and citizens of undeveloped countries talk in two different languages and that neither can begin to understand the other's position. 
American conservatives, in particular, exhort the backward countries on the virtues and the importance of private foreign investment from the advanced countries, and of allowing a favorable climate for this investment, free from governmental harassment. This is all very true, but is again often unreal to the undeveloped peoples, because the conservatives persistently fail to distinguish between legitimate, free-market foreign investment, as against investment based upon monopoly concessions and vast land grants by the undeveloped states. To the extent that foreign investments are based on land monopoly and aggression against the peasantry, to that extent do foreign capitalists take on the aspects of feudal landlords, and must be dealt with in the same way.
A moving expression of these truths was delivered in the form of a message to the American people by the prominent left-wing Mexican intellectual, Carlos Fuentes: 
You have had four centuries of uninterrupted development within the capitalistic structure. We have had four centuries of underdevelopment within a feudal structure. ...You had your own origin in the capitalistic revolution. ...You started from zero, a virgin society, totally equal to modern times, without any feudal ballast. On the contrary, we were founded as an appendix of the falling feudal order of the Middle Ages; we inherited its obsolete structures, absorbed its vices, and converted them into institutions on the outer rim of the revolution in the modern world. ...We come from ...slavery to ...latifundio [enormous expanses of land under a single landlord], denial of political, economic, or cultural rights for the masses, a customs house closed to modern ideas. ...You must understand that the Latin American drama stems from the persistence of those feudal structures over four centuries of misery and stagnation, while you were in the midst of the industrial revolution and were exercising a liberal democracy. 
We need not search far for examples of land aggression and monopoly in the modern world; they are indeed legion. We might cite one example not so very far removed from our hypothetical king of Ruritania: "The Shah owns more than half of all arable land in Iran, land originally taken over by his father. He owns close to 10,000 villages. So far, this great reformer has sold two of his villages". A typical example of foreign investment combined with land aggression is a North American mining company in Peru, the Cerro de Pasco Corporation. Cerro de Pasco, having legitimately purchased its land from a religious convent a half century ago, began in 1959 to encroach upon and seize the lands of neighboring Indian peasants. Indians of Rancas refusing to leave their land were massacred by peasants in the pay of the company; Indians of Yerus Yacan tried to contest the company's action in the courts, while company men burned pastures and destroyed peasant huts. When the Indians retook their land through mass non-violent action, the Peruvian government, at the behest of the Cerro de Pasco and the regional latifundio owners, sent troops to eject, assault, and even murder the unarmed Indians. 
What, then, is to be our view toward investment in oil lands, one of the major forms of foreign investment in underdeveloped countries in today's world? The major error of most analyses is to issue either a blanket approval or a blanket condemnation, for the answer depends on the justice of the property title established in each specific case. Where, for example, an oil company, foreign or domestic, lays claim to the oil field which it discovers and drills, then this is its just "homesteaded" private property, and it is unjust for the undeveloped government to tax or regulate the company. Where the government insists on claiming ownership of the land itself, and only leases the oil to the company, then (as we will see further below in discussing the role of government), the government's claim is illegitimate and invalid, and the company, in the role of homesteader, is properly the owner and not merely the renter of the oil land.
On the other hand, there are cases where the oil company uses the government of the undeveloped country to grant it, in advance of drilling, a monopoly concession to all the oil in a vast land area, thereby agreeing to the use of force to squeeze out all competing oil producers who might search for and drill oil in that area. In that case, as in the case above of Crusoe's arbitrarily using force to squeeze out Friday the first oil company is illegitimately using the government to become a land-and-oil monopolist. Ethically, any new company that enters the scene to discover and drill oil is the proper owner of its "homesteaded" oil area. A fortiori, of course, our oil concessionaire who also uses the State to eject peasants from their land by force - as was done, for example, by the Creole Oil Co. in Venezuela - is a collaborator with the government in the latter's aggression against the property rights of the peasantry. 
We are now able to see the grave fallacy in the current programs for "land reform" in the undeveloped countries. (These programs generally involve minor transfers of the least fertile land from landlords to peasants, along with full compensation to the landlords, often financed by the peasants themselves via state aid.) If the landlord's title is just, then any land reform applied to such land is an unjust and criminal confiscation of his property; but, on the other hand, if his title is unjust, then the reform is picayune and fails to reach the heart of the question. For then the only proper solution is an immediate vacating of the title and its transfer to the peasants, with certainly no compensation to the aggressors who had wrongly seized control of the land. Thus, the land problem in the undeveloped countries can only be solved by applying the rules of justice that we have set forth; and such application requires detailed and wholesale empirical inquiry into present titles to land.
In recent years, the doctrine has gained ground among American conservatives that feudalism, instead of being oppressive and exploitative, was in fact a bulwark of liberty. It is true that feudalism, as these conservatives point out, was not as evil a system as "Oriental despotism," but that is roughly equivalent to saying that imprisonment is not as severe a penalty as execution. The difference between feudalism and Oriental despotism was really of degree rather than kind; arbitrary power over land and over persons on that land was, in the one case, broken up into geographical segments; in the latter case, land tended to concentrate into the hands of one imperial overlord over the land-area of the entire country, aided by his bureaucratic retinue. The systems of power and repression are similar in type; the Oriental despot is a single feudal overlord with the consequent power accruing into his hands. Each system is a variant of the other; neither is in any sense libertarian. And there is no reason to suppose that society must choose between one and the other - that these are the only alternatives.
Historical thinking on this entire matter was shunted onto a very wrong road by the statist German historians of the late nineteenth century: by men such as Schmoller, Biicher, Ehrenberg, and Sombart. These historians postulated a sharp dichotomy and inherent conflict between feudalism on the one hand and absolute monarchy, or the strong State, on the other. They postulated that capitalist development required absolute monarchy and the strong State to smash local feudal and gild-type restrictions. In upholding this dichotomy of capitalism plus the strong central State vs. feudalism, they were joined, from their own special viewpoint, by the Marxists, who made no particular distinction between "bourgeoisie" who made use of the State, and bourgeoisie who acted on the free market. Now some modern conservatives have taken this old dichotomy and turned it on its head. Feudalism and the strong central state are still considered the critical polar opposites, except that feudalism is, on this view, considered the good alternative.
The error here is in the dichotomy itself. Actually, the strong state and feudalism were not antithetical; the former was a logical outgrowth of the latter, with the absolute monarch ruling as the super-feudal overlord. The strong state, when it developed in Western Europe, did not set about to smash feudal restrictions on trade; on the contrary, it superimposed its own central restrictions and heavy taxes on top of the feudal structure. The French Revolution, directed against the living embodiment of the strong state in Europe, was aimed at destroying both feudalism with its local restrictions, and the restrictions and high taxes imposed by the central government. The true dichotomy was liberty on the one side versus the feudal lords and the absolute monarch on the other. Furthermore, the free market and capitalism flourished earliest and most strongly in those very countries where both feudalism and central government power were at their relative weakest: the Italian city-states, and seventeenth-century Holland and England. 
North America's relative escape from the blight of feudal land and land monopoly was not for lack of trying. Many of the English colonies made strong attempts to establish feudal rule, especially where the colonies were chartered companies or proprietorships, as in New York, Maryland, and the Carolinas. The attempt failed because the New World was a vast and virgin land area, and therefore the numerous receivers of monopoly and feudal land grants - many of them enormous in size - could only gain profits from them by inducing settlers to come to the New World and settle on their property. Here were not, as in the Old World, previously existing settlers on relatively crowded land who could easily be exploited. Instead, the landlords, forced to encourage settlement, and anxious for a quick return, invariably subdivided and sold their lands to the settlers. It was unfortunate, of course, that by means of arbitrary claims and governmental grants, land titles were engrossed ahead of settlement. The settlers were consequently forced to pay a price for what should have been free land. But once the land was purchased by the settler, the injustice disappeared, and the land title accrued to its proper holder: the settler. In this way, the vast supply of virgin land, along with the desire of the land grantees for quick profits, led everywhere to the happy dissolution of feudalism and land monopoly, and the establishment in North America of a truly libertarian land system. Some of the colonial proprietors tried to keep collecting quitrents from the settlers - the last vestige of feudal exactions - but the settlers widely refused to pay or to treat the land as anything but their own. In every case, the colonial proprietors gave up trying to collect their quitrents, even before their charters were confiscated by the British Crown. In only one minor case did feudal land tenure persist (apart from the vital case of slavery and the large Southern plantations) in the English colonies: in the Hudson Valley counties in New York, where the large grantees persisted in not selling the lands to settlers, but in renting them out. As a result, continuing resistance and even open warfare were waged by the farmers (who were even known as "peasants") against their feudal landlords. This resistance culminated in the "Anti-Rent" wars of the 1840s, when the quitrent exactions were finally ended by the state legislature, and the last vestige of feudalism outside the South finally disappeared. 
The important exception to this agrarian idyll, of course, was the flourishing of the slave system in the Southern states. It was only the coercion of slave labor that enabled the large plantation system in staple crops to flourish in the South. Without the ability to own and coerce the labor of others, the large plantations - and perhaps much of the tobacco and later the cotton culture - would not have pervaded the South.
We have indicated above that there was only one possible moral solution for the slave question: immediate and unconditional abolition, with no compensation to the slavemasters. Indeed, any compensation should have been the other way - to repay the oppressed slaves for their lifetime of slavery. A vital part of such necessary compensation would have been to grant the plantation lands not to the slavemaster, who scarcely had valid title to any property, but to the slaves themselves, whose labor, on our "homesteading" principle, was mixed with the soil to develop the plantations. In short, at the very least, elementary libertarian justice required not only the immediate freeing of the slaves, but also the immediate turning over to the slaves, again without compensation to the masters, of the plantation lands on which they had worked and sweated. As it was, the victorious North made the same mistake - though "mistake" is far too charitable a word for an act that preserved the essence of an unjust and oppressive social system -as had Czar Alexander when he freed the Russian serfs in 1861: the bodies of the oppressed were freed, but the property which they had worked and eminently deserved to own, remained in the hands of their former oppressors. With the economic power thus remaining in their hands, the former lords soon found themselves virtual masters once more of what were now free tenants or farm laborers. The serfs and the slaves had tasted freedom, but had been cruelly deprived of its fruits. 

12. Self-Defense. 
If every man has the absolute right to his justly-held property it then follows that he has the right to keep that property - to defend it by violence against violent invasion. Absolute pacifists who also assert their belief in property rights - such as Mr. Robert LeFevre - are caught in an inescapable inner contradiction: for if a man owns property and yet is denied the right to defend it against attack, then it is clear that a very important aspect of that ownership is being denied to him. To say that someone has the absolute right to a certain property but lacks the right to defend it against attack or invasion is also to say that he does not have total right to that property.
Furthermore, if every man has the right to defend his person and property against attack, then he must also have the right to hire or accept the aid of other people to do such defending: he may employ or accept defenders just as he may employ or accept the volunteer services of gardeners on his lawn. 
How extensive is a man's right of self-defense of person and property? The basic answer must be: up to the point at which he begins to infringe on the property rights of someone else. For, in that case, his "defense" would in itself constitute a criminal invasion of the just property of some other man, which the latter could properly defend himself against. 
It follows that defensive violence may only be used against an actual or directly threatened invasion of a person's property - and may not be used against any nonviolent "harm" that may befall a person's income or property value. Thus, suppose that A, B, C, D ...etc. decide, for whatever reason, to boycott the sales of goods from Smith's factory or store. They picket, distribute leaflets, and make speeches - all in a non-invasive manner - calling on everyone to boycott Smith. Smith may lose considerable income, and they may well be doing this for trivial or even immoral reasons; but the fact remains that organizing such a boycott is perfectly within their rights, and if Smith tried to use violence to break up such boycott activities he would be a criminal invader of their property. 
Defensive violence, therefore, must be confined to resisting invasive acts against person or property. But such invasion may include two corollaries to actual physical aggression: intimidation, or a direct threat of physical violence; and fraud, which involves the appropriation of someone else's property without his consent, and is therefore "implicit theft".
Thus, suppose someone approaches you on the street, whips out a gun, and demands your wallet. He might not have molested you physically during this encounter, but he has extracted money from you on the basis of a direct, overt threat that he would shoot you if you disobeyed his commands. He has used the threat of invasion to obtain your obedience to his commands, and this is equivalent to the invasion itself. 
It is important to insist, however, that the threat of aggression be palpable, immediate, and direct; in short, that it be embodied in the initiation of an overt act. Any remote or indirect criterion - any "risk" or "threat" - is simply an excuse for invasive action by the supposed "defender" against the alleged "threat". One of the major arguments, for example, for the prohibition of alcohol in the 1920s was that the imbibing of alcohol increased the likelihood of (unspecified) people committing various crimes; therefore, prohibition was held to be a "defensive" act in defense of person and property. In fact, of course, it was brutally invasive of the rights of person and property, of the right to buy, sell, and use alcoholic beverages. In the same way, it could be held that (a) the failure to ingest vitamins makes people more irritable, that (b) the failure is therefore likely to increase crime, and that therefore (c) everyone should be forced to take the proper amount of vitamins daily. Once we bring in "threats" to person and property that are vague and future i.e., are not overt and immediate then all manner of tyranny becomes excusable. The only way to guard against such despotism is to keep the criterion of perceived invasion clear and immediate and overt. For, in the inevitable case of fuzzy or unclear actions, we must bend over backwards to require the threat of invasion to be direct and immediate, and therefore to allow people to do whatever they may be doing. In short, the burden of proof that the aggression has really begun must be on the person who employs the defensive violence.
Fraud as implicit theft stems from the right of free contract, derived in turn from the rights of private property. Thus, suppose that Smith and Jones agree on a contractual exchange of property titles: Smith will pay $1000 in return for Jones's car. If Smith appropriates the car and then refuses to turn over $1000 to Jones, then Smith has in effect stolen the $1000; Smith is an aggressor against $1000 now properly belonging to Jones. Thus, failure to keep a contract of this type is tantamount to theft, and therefore to a physical appropriation of another's property fully as "violent" as trespass or simple burglary without armed assault. 
Fraudulent adulteration is equally implicit theft. If Smith pays $1000 and receives from Jones not a specified make of car but an older and poorer car, this too is implicit theft: once again, someone's property has been appropriated in a contract, without the other person's property being turned over to him as agreed. 
But we must not be led into the trap of holding that all contracts, whatever their nature, must be enforceable (i.e., that violence may properly be used in their enforcement). The only reason the above contracts are enforceable is that breaking such contracts involves an implicit theft of property. Those contracts which do not involve implicit theft should not be enforceable in a libertarian society. Suppose, for example, that A and B make an agreement, a "contract", to get married in six months; or that A promises that, in six months' time, A will give B a certain sum of money. If A breaks these agreements, he may perhaps be morally reprehensible, but he has not implicitly stolen the other person's property, and therefore such a contract cannot be enforced. To use violence in order to force A to carry out such contracts would be just as much a criminal invasion of A's rights as it would be if Smith decided to use violence against the men who boycotted his store. Simple promises, therefore, are not properly enforceable contracts, because breaking them does not involve invasion of property or implicit theft.
Debt contracts are properly enforceable, not because a promise is involved, but because the creditor's property is appropriated without his consent -i.e., stolen if the debt is not paid. Thus, if Brown lends Green $1000 this year in return for the delivery of $1100 next year, and Green fails to pay the $1100, the proper conclusion is that Green has appropriated $1100 of Smith's property, which Green refuses to turn over - in effect, has stolen. This legal way of treating a debt - of holding that the creditor has a property in the debt - should be applied to all debt contracts.
Thus, it is not the business of law - properly the rules and instrumentalities by which person and property are violently defended - to make people moral by use of legal violence. It is not the proper business of law to make people be truthful or to keep their promises. It is the business of legal violence to defend persons and their property from violent attack, from molestation or appropriation of their property without their consent. To say more - to say, for example, that mere promises are properly enforceable - is to make an unwarranted fetish of "contracts" while forgetting why some of them are enforceable: in defense of the just rights of property.
Violent defense then must be confined to violent invasion - either actually, implicitly, or by direct and overt threat. But given this principle, how far does the right of violent defense go? For one thing, it would clearly be grotesque and criminally invasive to shoot a man across the street because his angry look seemed to you to portend an invasion. The danger must be immediate and overt, we might say, "clear and present" - a criterion that properly applies not to restrictions on freedom of speech (never permissible, if we regard such freedom as a subset of the rights of person and property) but to the right to take coercive action against a supposedly imminent invader. 
Secondly, we may ask: must we go along with those libertarians who claim that a storekeeper has the right to kill a lad as punishment for snatching a piece of his bubble gum? What we might call the "maximalist" position goes as follows: by stealing the bubble gum, the urchin puts himself outside the law. He demonstrates by his action that he does not hold or respect the correct theory of property rights. Therefore, he loses all of his rights, and the storekeeper is within his rights to kill the lad in retaliation. 
I propose that this position suffers from a grotesque lack of proportion. By concentrating on the storekeeper's right to his bubble gum, it totally ignores another highly precious property-right: every man's - including the urchin's - right of self-ownership. On what basis must we hold that a minuscule invasion of another's property lays one forfeit to the total loss of one's own? I propose another fundamental rule regarding crime: the criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights. From this principle immediately derives the proportionality theory of punishment - best summed up in the old adage: "let the punishment fit the crime". 
We conclude that the shopkeeper's shooting of the erring lad went beyond this proportionate loss of rights, to wounding or killing the criminal; this going beyond is in itself an invasion of the property right in his own person of the bubble gum thief. In fact, the storekeeper has become a far greater criminal than the thief, for he has killed or wounded his victim - a far graver invasion of another's rights than the original shoplifting.
Should it be illegal, we may next inquire, to "incite to riot"? Suppose that Green exhorts a crowd: "Go! Burn! Loot! Kill!" and the mob proceeds to do just that, with Green having nothing further to do with these criminal activities. Since every man is free to adopt or not adopt any course of action he wishes, we cannot say that in some way Green determined the members of the mob to their criminal activities; we cannot make him, because of his exhortation, at all responsible for their crimes. "Inciting to riot," therefore, is a pure exercise of a man's right to speak without being thereby implicated in crime. On the other hand, it is obvious that if Green happened to be involved in a plan or conspiracy with others to commit various crimes, and that then Green told them to proceed, he would then be just as implicated in the crimes as are the others - more so, if he were the mastermind who headed the criminal gang. This is a seemingly subtle distinction which in practice is clearcut - there is a world of difference between the head of a criminal gang and a soap-box orator during a riot; the former is not, properly to be charged simply with "incitement."
It should further be clear from our discussion of defense that every man has the absolute right to bear arms - whether for self-defense or any other licit purpose. The crime comes not from bearing arms, but from using them for purposes of threatened or actual invasion. It is curious, by the way that the laws have especially banned concealed weapons, when it is precisely the open and unconcealed weapons which might be used for intimidation. 
In every crime, in every invasion of rights, from the most negligible breach of contract up to murder, there are always two parties (or sets of parties) involved: the victim (the plaintiff) and the alleged criminal (the defendant). The purpose of every judicial proceeding is to find, as best we can, who the criminal is or is not in any given case. Generally, these judicial rules make for the most widely acceptable means of finding out who the criminals may be. But the libertarian has one overriding caveat on these procedures: no force may be used against non-criminals. For any physical force used against a non-criminal is an invasion of that innocent person's rights, and is therefore itself criminal and impermissible. Take, for example, the police practice of beating and torturing suspects - or, at least, of tapping their wires. People who object to these practices are invariably accused by conservatives of "coddling criminals". But the whole point is that we don't know if these are criminals or not, and until convicted, they must be presumed not to be criminals and to enjoy all the rights of the innocent: in the words of the famous phrase, "they are innocent until proven guilty." (The only exception would be a victim exerting self-defense on the spot against an aggressor, for he knows that the criminal is invading his home.) "Coddling criminals" then becomes, in actuality, making sure that police do not criminally invade the rights of self-ownership of presumptive innocents whom they suspect of crime. In that case, the "coddler," and the restrainer of the police, proves to be far more of a genuine defender of property rights than is the conservative. 
We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals. 
As a corollary, police can never be allowed to commit an invasion that is worse than, or that is more than proportionate to, the crime under investigation. Thus, the police can never be allowed to beat and torture someone charged with petty theft, since the beating is far more proportionate a violation of a man's rights than the theft, even if the man is indeed the thief.
It should be clear that no man, in an attempt to exercise his right of self-defense, may coerce anyone else into defending him. For that would mean that the defender himself would be a criminal invader of the rights of others. Thus, if A is aggressing against B, B may not use force to compel C to join in defending him, for then B would be just as much a criminal aggressor against C. This immediately rules out conscription for defense, for conscription enslaves a man and forces him to fight on someone else's behalf. It also rules out such a deeply embedded part of our legal system as compulsory witnesses. No man should have the right to force anyone else to speak on any subject. The familiar prohibition against coerced self-incrimination is all very well, but it should be extended to preserving the right not to incriminate anyone else, or indeed to say nothing at all. The freedom to speak is meaningless without the corollary freedom to keep silent.
If no force may be used against a noncriminal, then the current system of compulsory jury duty must also be abolished. Just as conscription is a form of slavery, so too is compulsory jury duty. Precisely because being a juror is so important a service, the service must not be filled by resentful serfs. And how can any society call itself "libertarian" that rests on a foundation of jury slavery? In the current system, the courts enslave jurors because they pay a daily wage so far below the market price that the inevitable shortage of jury labor has to be supplied by coercion. The problem is very much the same as the military draft, where the army pays far below the market wage for privates, cannot obtain the number of men they want at that wage, and then turns to conscription to supply the gap. Let the courts pay the market wage for jurors, and sufficient supply will be forthcoming.
If there can be no compulsion against jurors or witnesses, then a libertarian legal order will have to eliminate the entire concept of the subpoena power. Witnesses, of course, may be requested to appear. But this voluntarism must also apply to the defendants, since they have not yet been convicted of crime. In a libertarian society, the plaintiff would notify the defendant that the latter is being charged with a crime, and that a trial of the defendant will be underway. The defendant would be simply invited to appear. There would be no compulsion on him to appear. If he chose not to defend himself, then the trial would proceed in absentia, which of course would mean that the defendant's chances would be by that much diminished. Compulsion could only be used against the defendant after his final conviction. In the same way, a defendant could not be kept in jail before his conviction, unless, as in the case of police coercion, the jailer is prepared to face a kidnapping conviction if the defendant turns out to be innocent. 

13. Punishment and Proportionality. 
Few aspects of libertarian political theory are in a less satisfactory state than the theory of punishment. Usually, libertarians have been content to assert or develop the axiom that no one may aggress against the person or property of another; what sanctions may be taken against such an invader has been scarcely treated at all. We have advanced the view that the criminal loses his rights to the extent that he deprives another of his rights: the theory of "proportionality." We must now elaborate further on what such a theory of proportional punishment may imply. In the first place, it should be clear that the proportionate principle is a maximum, rather than a mandatory, punishment for the criminal. In the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrong doer. In a libertarian world, there would be no crimes against an ill-defined "society," and therefore no such person as a "district attorney" who decides on a charge and then presses those charges against an alleged criminal. The proportionality rule tells us how much punishment a plaintiff may exact from a convicted wrongdoer, and no more; it imposes the maximum limit on punishment that may be inflicted before the punisher himself becomes a criminal aggressor.
Thus, it should be quite clear that, under libertarian law, capital punishment would have to be confined strictly to the crime of murder. For a criminal would only lose his right to life if he had first deprived some victim of that same right. It would not be permissible, then, for a merchant whose bubble gum had been stolen, to execute the convicted bubble gum thief. If he did so, then he, the merchant, would be an unjustifiable murderer, who could be brought to the bar of justice by the heirs or assigns of the bubble gum thief.
But, in libertarian law, there would be no compulsion on the plaintiff, or his heirs, to exact this maximum penalty. If the plaintiff or his heir, for example, did not believe in capital punishment, for whatever reason, he could voluntarily forgive the victim of part or all of his penalty. If he were a Tolstoyan, and was opposed to punishment altogether, he could simply forgive the criminal, and that would be that. Or - and this has a long and honorable tradition in older Western law - the victim or his heir could allow the criminal to buy his way out of part or all of his punishment.  Thus, if proportionality allowed the victim to send the criminal to jail for ten years, the criminal could, if the victim wished, pay the victim to reduce or eliminate this sentence. The proportionality theory only supplies the upper bound to punishment - since it tells us how much punishment a victim may rightfully impose. 
A problem might arise in the case of murder - since a victim's heirs might prove less than diligent in pursuing the murderer, or be unduly inclined to let the murderer buy his way out of punishment. This problem could be taken care of simply by people stating in their wills what punishment they should like to inflict on their possible murderers. The believer in strict retribution, as well as the Tolstoyan opponent of all punishment, could then have their wishes precisely carried out. The deceased, indeed, could provide in his will for, say, a crime insurance company to which he subscribes to be the prosecutor of his possible murderer. If, then, proportionality sets the upper bound to punishment, how may we establish proportionality itself? The first point is that the emphasis in punishment must be not on paying one's debt to "society," whatever that may mean, but in paying one's "debt" to the victim. Certainly, the initial part of that debt is restitution. This works clearly in cases of theft. If A has stolen $15,000 from B, then the first, or initial, part of A's punishment must be to restore that $15,000 to the hands of B (plus damages, judicial and police costs, and interest foregone). Suppose that, as in most cases, the thief has already spent the money. In that case, the first step of proper libertarian punishment is to force the thief to work, and to allocate the ensuing income to the victim until the victim has been repaid. The ideal situation, then, puts the criminal frankly into a state of enslavement to his victim, the criminal continuing in that condition of just slavery until he has redressed the grievance of the man he has wronged. 
We must note that the emphasis of restitution - punishment is diametrically opposite to the current practice of punishment. What happens nowadays is the following absurdity: A steals $15,000 from B. The government tracks down, tries, and convicts A, all at the expense of B, as one of the numerous taxpayers victimized in this process. Then, the government, instead of forcing A to repay B or to work at forced labor until that debt is paid, forces B, the victim, to pay taxes to support the criminal in prison for ten or twenty years' time. Where in the world is the justice here? The victim not only loses his money, but pays more money besides for the dubious thrill of catching, convicting, and then supporting the criminal; and the criminal is still enslaved, but not to the good purpose of recompensing his victim. 
The idea of primacy for restitution to the victim has great precedent in law; indeed, it is an ancient principle of law which has been allowed to wither away as the State has aggrandized and monopolized the institutions of justice. In medieval Ireland, for example, a king was not the head of State but rather a crime-insurer; if someone committed a crime, the first thing that happened was that the king paid the "insurance" benefit to the victim, and then proceeded to force the criminal to pay the king in turn (restitution to the victim's insurance company being completely derived from the idea of restitution to the victim). In many parts of colonial America, which were too poor to afford the dubious luxury of prisons, the thief was indentured out by the courts to his victim, there to be forced to work for his victim until his "debt" was paid. This does not necessarily mean that prisons would disappear in the libertarian society, but they would undoubtedly change drastically, since their major goal would be to force the criminals to provide restitution to their victim. 
In fact, in the Middle Ages generally, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities encroach ever more into the repayment process, increasingly confiscating a greater proportion of the criminal's property for themselves, and leaving less and less to the unfortunate victim. Indeed, as the emphasis shifted from restitution to the victim, from compensation by the criminal to his victim, to punishment for alleged crimes committed "against the State," the punishments exacted by the State became more and more severe. As the early twentieth-century criminologist William Tallack wrote,
It was chiefly owing to the violent greed of feudal barons and medieval ecclesiastical powers that the rights of the injured party were gradually infringed upon, and finally, to a large extent, appropriated by these authorities, who exacted a double vengeance, indeed, upon the offender, by forfeiting his property to themselves instead of to his victim, and then punishing him by the dungeon, the torture, the stake or the gibbet. But the original victim of wrong was practically ignored. 
Or, as Professor Schafer has summed up: "As the state monopolized the institution of punishment, so the rights of the injured were slowly separated from penal law.
But restitution, while the first consideration in punishment, can hardly serve as the complete and sufficient criterion. For one thing, if one man assaults another, and there is no theft of property, there is obviously no way for the criminal to make restitution. In ancient forms of law, there were often set schedules for monetary recompense that the criminal would have to pay the victim: so much money for an assault, so much more for mutilation, etc. But such schedules are clearly wholly arbitrary, and bear no relation to the nature of the crime itself. We must therefore fall back upon the view that the criterion must be: loss of rights by the criminal to the same extent as he has taken away.
But how are we to gauge the nature of the extent? Let us return to the theft of the $15,000. Even here, simple restitution of the $15,000 is scarcely sufficient to cover the crime (even if we add damages, costs, interest, etc.). For one thing, mere loss of the money stolen obviously fails to function in any sense as a deterrent to future such crime (although we will see below that deterrence itself is a faulty criterion for gauging punishment). If, then, we are to say that the criminal loses rights to the extent that he deprives the victim, then we must say that the criminal should not only have to return the $15,000, but that he must be forced to pay the victim another $15,000, so that he, in turn, loses those rights (to $15,000 worth of property) which he had taken from the victim. In the case of theft, then, we may say that the criminal must pay double the extent of theft: once, for restitution of the amount stolen, and once again for loss of what he had deprived another. 
But we are still not finished with elaborating the extent of deprivation of rights involved in a crime. For A had not simply stolen $15,000 from B, which can be restored and an equivalent penalty imposed.
He had also put B into a state of fear and uncertainty, of uncertainty as to the extent that B's deprivation would go. But the penalty levied on A is fixed and certain in advance, thus putting A in far better shape than was his original victim. So that for proportionate punishment to be levied we would also have to add more than double so as to compensate the victim in some way for the uncertain and fearful aspects of his particular ordeal. What this extra compensation should be it is impossible to say exactly, but that does not absolve any rational system of punishment - including the one that would apply in the libertarian society - from the problem of working it out as best one can. 
In the question of bodily assault, where restitution does not even apply, we can again employ our criterion of proportionate punishment; so that if A has beaten up B in a certain way, then B has the right to beat up A (or have him beaten up by judicial employees) to rather more than the same extent. 
Here allowing the criminal to buy his way out of this punishment could indeed enter in, but only as a voluntary contract with the plaintiff. For example, suppose that A has severely beaten B; B now has the right to beat up A as severely, or a bit more, or to hire someone or some organization to do the beating for him (who in a libertarian society, could be marshals hired by privately competitive courts). But A, of course, is free to try to buy his way out, to pay B for waiving his right to have his aggressor beaten up. 
The victim, then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime, but he is also free either to allow the aggressor to buy his way out of punishment, or to forgive the aggressor partially or altogether. The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment; but how much or whether the victim decides to exercise that right is up to him. As Professor Armstrong puts it:
[T]here should be a proportion between the severity of the crime and the severity of the punishment. It sets an upper limit to the punishment, suggests what is due ....Justice gives the appropriate authority [in our view, the victim] the right to punish offenders up to some limit, but one is not necessarily and invariably obliged to punish to the limit of justice. Similarly, if I lend a man money I have a right, in justice, to have it returned, but if I choose not to take it back I have not done anything unjust. I cannot claim more than is owed to me but I am free to claim less, or even to claim nothing. 
Or, as Professor McCloskey states: "We do not act unjustly if, moved by benevolence, we impose less than is demanded by justice, but there is a grave injustice if the deserved punishment is exceeded." Many people, when confronted with the libertarian legal system, are concerned with this problem: would somebody be allowed to "take the law into his own hands"? Would the victim, or a friend of the victim, be allowed to exact justice personally on the criminal? The answer is, of course, Yes, since all rights of punishment derive from the victim's right of self-defense. In the libertarian, purely free-market society. however, the victim will generally find it more convenient to entrust the task to the police and court agencies. Suppose, for example, that Hatfield murders McCoy. McCoy then decides to seek out and execute Hatfield himself. This is fine, except that, just as in the case of the police coercion discussed in the previous section, McCoy may have to face the prospect of being charged with murder in the private courts by Hatfield. The point is that if the courts find that Hatfield, was indeed the murderer, then nothing happens to McCoy in our schema except public approbation for executing justice. But if it turns out that there was not enough evidence to convict Hatfield, for the original murder, or if indeed some other Hatfield or some stranger committed the crime, then McCoy, as in the case of the police invaders mentioned above, cannot plead any sort of immunity; he then becomes a murderer liable to be executed by the courts at the behest of the irate Hatfield heirs. Hence, just as in the libertarian society, the police will be mighty careful to avoid invasion of the rights of any suspect unless they are absolutely convinced of his guilt and willing to put their bodies on the line for this belief, so also few people will "take the law into their own hands" unless they are similarly convinced. Furthermore, if Hatfield merely beat up McCoy, and then McCoy kills him in return, this too would put McCoy up for punishment as a murderer. Thus, the almost universal inclination would be to leave the execution of justice to the courts, whose decisions based on rules of evidence, trial procedure, etc. similar to what may apply now, would be accepted by society as honest and as the best that could be achieved. 
It should be evident that our theory of proportional punishment - that people may be punished by losing their rights to the extent that they have invaded the rights of others - is frankly a retributive theory of punishment, a "tooth (or two teeth) for a tooth" theory. Retribution is in bad repute among philosophers, who generally dismiss the concept quickly as "primitive" or "barbaric" and then race on to a discussion of the two other major theories of punishment: deterrence and rehabilitation. But simply to dismiss a concept as "barbaric" can hardly suffice; after all, it is possible that in this case, the "barbarians" hit on a concept that was superior to the more modern creeds. 
Professor H.L.A. Hart describes the "crudest form" of proportionality, such as we have advocated here (the lex talionis), as 
the notion that what the criminal has done should be done to him, and wherever thinking about punishment is primitive, as it often is, this crude idea reasserts itself: the killer should be killed, the violent assailant should be flogged. 
But "primitive" is scarcely a valid criticism, and Hart himself admits that this "crude" form presents fewer difficulties than the more "refined" versions of the proportionality - retributivist thesis. His only reasoned criticism, which he seems to think dismisses the issue, is a quote from Blackstone: 
There are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery.
But these are scarcely cogent criticisms. Theft and forgery constitute robbery, and the robber can certainly be made to provide restitution and proportional damages to the victim; there is no conceptual problem there. Adultery, in the libertarian view, is not a crime at all, and neither, as will be seen below, is "defamation".
Let us then turn to the two major modern theories and see if they provide a criterion for punishment which truly meets our conceptions of justice, as retribution surely does. Deterrence was the principle put forth by utilitarianism, as part of its aggressive dismissal of principles of justice and natural law, and the replacement of these allegedly metaphysical principles by hard practicality. The practical goal of punishments was then supposed to be to deter further crime, either by the criminal himself or by other members of society. But this criterion of deterrence implies schemas of punishment which almost everyone would consider grossly unjust. For example, if there were no punishment for crime at all, a great number of people would commit petty theft, such as stealing fruit from a fruit-stand. On the other hand, most people have a far greater built-in inner objection to themselves committing murder than they have to petty shoplifting, and would be far less apt to commit the grosser crime. Therefore, if the object of punishment is to deter from crime, then a far greater punishment would be required for preventing shoplifting than for preventing murder, a system that goes against most people's ethical standards. As a result, with deterrence as the criterion there would have to be stringent capital punishment for petty thievery -for the theft of bubble gum-while murderers might only incur the penalty of a few months in jail. 
Similarly, a classic critique of the deterrence principle is that, if deterrence were our sole criterion, it would be perfectly proper for the police or courts to execute publicly for a crime someone whom they know to be innocent, but whom they had convinced the public was guilty. The knowing execution of an innocent man - provided, of course, that the knowledge can be kept secret -would exert a deterrence effect just as fully as the execution of the guilty. And yet, of course, such a policy, too, goes violently against almost everyone's standards of justice. 
The fact that nearly everyone would consider such schemes of punishments grotesque, despite their fulfillment of the deterrence criterion, shows that people are interested in something more important than deterrence. What this may be is indicated by the overriding objection that these deterrent scales of punishment, or the killing of an innocent man, clearly invert our usual view of justice. Instead of the punishment "fitting the crime" it is now graded in inverse proportion to its severity or is meted out to the innocent rather than the guilty. In short, the deterrence principle implies a gross violation of the intuitive sense that justice connotes some form of fitting and proportionate punishment to the guilty party and to him alone. 
The most recent, supposedly highly "humanitarian" criterion for punishment is to "rehabilitate" the criminal. Old-fashioned justice, the argument goes, concentrated on punishing the criminal, either in retribution or to deter future crime; the new criterion humanely attempts to reform and rehabilitate the criminal. But on further consideration, the "humanitarian" rehabilitation principle not only leads to arbitrary and gross injustice, it also places enormous and arbitrary power to decide men's fates in the hands of the dispensers of punishment. Thus, suppose that Smith is a mass murderer, while Jones stole some fruit from a stand. Instead of being sentenced in proportion to their crimes, their sentences are now indeterminate, with confinement ending upon their supposedly successful "rehabilitation". But this gives the power to determine the prisoners' lives into the hands of an arbitrary group of supposed rehabilitators. It would mean that instead of equality under the law -an elementary criterion of justice -with equal crimes being punished equally, one man may go to prison for a few weeks, if he is quickly "rehabilitated," while another may remain in prison indefinitely. Thus, in our case of Smith and Jones, suppose that the mass murderer Smith is, according to our board of "experts," rapidly rehabilitated. He is released in three weeks, to the plaudits of the supposedly successful reformers. In the meanwhile, Jones, the fruit-stealer, persists in being incorrigible and clearly un-rehabilitated, at least in the eyes of the expert board. According to the logic of the principle, he must stay incarcerated indefinitely, perhaps for the rest of his life, for while the crime was negligible, he continued to remain outside the influence of his "humanitarian" mentors. 
Thus, Professor K.G. Armstrong writes of the reform principle:
The logical pattern of penalties will be for each criminal to be given reformatory treatment until he is sufficiently changed for the experts to certify him as reformed. On this theory, every sentence ought to be indeterminate - "to be determined at the Psychologist's pleasure, "perhaps - for there is no longer any basis for the principle of a definite limit to punishment. "You stole a loaf of bread? Well, we'll have to reform you, even if it takes the rest of your life." From the moment he is guilty the criminal loses his rights as a human being ...This is not a form of humanitarianism I care for. 
Never has the tyranny and gross injustice of the "humanitarian" theory of punishment-as-reform been revealed in more scintillating fashion than by C.S. Lewis. Noting that the "reformers" call their proposed actions "healing" or "therapy" rather than "punishment," Lewis adds:
But do not let us be deceived by a name. To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver. ..to know that this process will never end until either my captors have succeeded or I grown wise enough to cheat them with apparent success - who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared - shame, exile, bondage, and years eaten by the locust is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard. 
Lewis goes on to demonstrate the particularly harsh tyranny that is likely to be levied by "humanitarians" out to inflict their "reforms" and "cures" on the populace:
Of all tyrannies a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be "cured" against one's will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we "ought to have known better," is to be treated as a human person made in God's image.
Furthermore, Lewis points out, the rulers can use the concept of "disease" as a means for terming any actions that they dislike as "crimes" and then to inflict a totalitarian rule in the name of Therapy.
For if crime and disease are to be regarded as the same thing, it follows that any state of mind which our masters choose to call "disease" can be treated as crime; and compulsorily cured. It will be vain to plead that states of mind which displease government need not always involve moral turpitude and do not therefore always deserve forfeiture of liberty. For our masters will not be using concepts of Desert and Punishment but those of disease and cure. ...It will not be persecution. Even if the treatment is painful, even if it is life-long, even if it is fatal, that will be only a regrettable accident; the intention was purely therapeutic. Even in ordinary medicine there were painful operations and fatal operations; so in this. But because they are "treatment," not punishment, they can be criticized only by fellow-experts and on technical grounds, never by men as men and on grounds of justice. 
Thus, we see that the fashionable reform approach to punishment can be at least as grotesque and far more uncertain and arbitrary than the deterrence principle. Retribution remains as our only just and viable theory of punishment and equal treatment for equal crime is fundamental to such retributive punishment. The barbaric turns out to be the just while the "modern" and the "humanitarian" turn out to be grotesque parodies of justice.

14. Children and Rights. 
We have now established each man's property right in his own person and in the virgin land that he finds and transforms by his labor, and we have shown that from these two principles we can deduce the entire structure of property rights in all types of goods. These include the goods which he acquires in exchange or as a result of a voluntary gift or bequest.
There remains, however, the difficult case of children. The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner. But this poses a difficult problem: for when, or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?
First, let us begin with the prenatal child. What is the parent's, or rather the mother's, property right in the fetus? In the first place, we must note that the conservative Catholic position has generally been dismissed too brusquely. This position holds that the fetus is a living person, and hence that abortion is an act of murder and must therefore be outlawed as in the case of any murder. The usual reply is simply to demarcate birth as the beginning of a live human being possessing natural rights, including the right not to be murdered; before birth, the counter-argument runs, the child cannot be considered a living person. But the Catholic reply that the fetus is alive and is an imminently potential person then comes disquietingly close to the general view that a newborn baby cannot be aggressed against because it is a potential adult. While birth is indeed the proper line of demarcation, the usual formulation makes birth an arbitrary dividing line, and lacks sufficient rational groundwork in the theory of self-ownership. 
The proper groundwork for analysis of abortion is in every man's absolute right of self-ownership. This implies immediately that every woman has the absolute right to her own body, that she has absolute dominion over her body and everything within it. This includes the fetus. Most fetuses are in the mother's womb because the mother consents to this situation, but the fetus is there by the mother's freely-granted consent. But should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic "invader" of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as "murder" of a living person, but as the expulsion of an unwanted invader from the mother's body. Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers. 
It has been objected that since the mother originally consented to the conception, the mother has therefore "contracted" its status with the fetus, and may not "violate" that "contract" by having an abortion. There are many problems with this doctrine, however. In the first place, as we shall see further below, a mere promise is not an enforceable contract: contracts are only properly enforceable if their violation involves implicit theft, and clearly no such consideration can apply here. Secondly, there is obviously no "contract" here, since the fetus (fertilized ovum?) can hardly be considered a voluntarily and consciously contracting entity. And thirdly as we have seen above, a crucial point in libertarian theory is the inalienability of the will, and therefore the impermissibility of enforcing voluntary slave contracts. Even if this had been a "contract," then, it could not be enforced because a mother's will is inalienable, and she cannot legitimately be enslaved into carrying and having a baby against her will.
Another argument of the anti-abortionists is that the fetus is a living human being, and is therefore entitled to all of the rights of human beings. Very good; let us concede, for purposes of the discussion, that fetuses are human beings -or, more broadly, potential human beings - and are therefore entitled to full human rights. But what humans, we may ask, have the right to be coercive parasites within the body of an unwilling human host? Clearly no born humans have such a right, and therefore, a fortiori, the fetus can have no such right either. 
The anti-abortionists generally couch the preceding argument in terms of the fetus's, as well as the born human's, "right to life." We have not used this concept in this volume because of its ambiguity, and because any proper rights implied by its advocates are included in the concept of the "right to self-ownership" - the right to have one's person free from aggression. Even Professor Judith Thomson, who, in her discussion of the abortion question, attempts inconsistently to retain the concept of "right to life" along with the right to own one's own body, lucidly demonstrates the pitfalls and errors of the "right to life" doctrine: 
In some views, having a right to life includes having a right to be given at least the bare minimum one needs for continued life. But suppose that what in fact is the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda's cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda's cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. ...But I have no right at all against anybody that he should do this for me.
In short, it is impermissible to interpret the term "right to life," to give one an enforceable claim to the action of someone else to sustain that life. In our terminology such a claim would be an impermissible violation of the other person's right of self-ownership. Or, as Professor Thomson cogently puts it, "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body - even if one needs it for life itself. 
Suppose now that the baby has been born. Then what? First, we may say that the parents - or rather the mother, who is the only certain and visible parent - as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party or parties may be the baby's owner, but to assert that a third party can claim his "ownership" over the baby would give that person the right to seize the baby by force from its natural or "homesteading" owner, its mother. The mother, then, is the natural and rightful owner of the baby, and any attempt to seize the baby by force is an invasion of her property right.
But surely the mother or parents may not receive the ownership of the child in absolute fee simple, because that would imply the bizarre state of affairs that a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent. So the parental property right must be limited in time. But it also must be limited in kind, for it surely would be grotesque for a libertarian who believes in the right of self-ownership to advocate the right of a parent to murder or torture his or her children. 
We must therefore state that, even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother's body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child's rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of "rights" is a "negative" one, demarcating the areas of a person's action that no man may properly interfere with. No man can therefore have a "right" to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a "right" to a "living wage," for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced. As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former's rights; the only legal obligation one man has to another is to respect the other man's rights. 
Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die. The law, therefore, may not properly compel the parent to feed a child or to keep it alive. (Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.) This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g. by not feeding it)? The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such "neglect" down to a minimum.)
Our theory also enables us to examine the question of Dr. Kenneth Edelin, of Boston City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die (at the wish, of course, of the mother) after performing an abortion. If parents have the legal right to allow a baby to die, then a fortiori they have the same right for extra-uterine fetuses. Similarly, in a future world where babies may be born in extra-uterine devices ("test tubes"), again the parents would have the legal right to "pull the plug" on the fetuses or, rather, to refuse to pay to continue the plug in place. 
Let us examine the implications of the doctrine that parents should have a legally enforceable obligation to keep their children alive. The argument for this obligation contains two components: that the parents created the child by a freely-chosen, purposive act; and that the child is temporarily helpless and not a self-owner. If we consider first the argument from helplessness, then first, we may make the general point that it is a philosophical fallacy to maintain that A's needs properly impose coercive obligations on B to satisfy these needs. For one thing, B's rights are then violated. Secondly, if a helpless child may be said to impose legal obligations on someone else, why specifically on its parents, and not on other people? What do the parents have to do with it? The answer, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation. 
Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive who was the result of an act of rape, since this was not a freely-undertaken act. It also rules out any such obligation by a step-parent, foster parent, or guardian, who didn't participate at all in creating the child. 
Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult? As Evers states:
The parents are still the creators of the child, why aren't they obliged to support the child forever? It is true that the child is no longer helpless; but helplessness (as pointed out above) is not in and of itself a cause of binding obligation. If the condition of being the creator of another is the source of the obligation, and this condition persists, why doesn't the obligation? 
And what of the case, in some future decade, when a scientist becomes able to create human life in the laboratory? The scientist is then the "creator". Must he also have a legal obligation to keep the child alive? And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources - his time, energy, money, capital equipment - should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion? 
This question of resources is also directly relevant to the case of natural parents. As Evers points out:
[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an ...obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child? 
And if not, we might add, at what point does the parents legal obligation properly cease? And by what criterion? Evers goes on: 
One might want to argue that parents owe only the average minimal care (heat, shelter, nutrition) necessary to keep a child alive. But, if one is going to take the obligation position, it seems illogical - in view of the wide variety of human qualities and characteristics - to tie obligation to the Procrustean bed of the human average. 
A common argument holds that the voluntary act of the parents has created a "contract" by which the parents are obligated to maintain the child. But (a) this would also entail the alleged "contract" with the fetus that would prohibit abortion, and (b) this falls into all the difficulties with the contract theory as analyzed above.
Finally as Evers points out, suppose that we consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn't this be a "monstrous involuntary servitude that is being foisted upon a rescuer?" And if for the rescuer, why not also for the natural parent?
The mother, then, becomes at the birth of her child its "trustee-owner," legally obliged only not to aggress against the child's person, since the child possesses the potential for self-ownership. Apart from that, so long as the child lives at home, it must necessarily come under the jurisdiction of its parents, since it is living on property owned by those parents. Certainly the parents have the right to set down rules for the use of their home and property for all persons (whether children or not) living in that home. 
But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely any particular age (21, 18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature -in short, when he leaves or "runs away" from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child's ultimate expression of his right of self-ownership, regardless of age. 
Now if a parent may own his child (within the framework of non-aggression and runaway-freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monstrous and inhuman. But closer thought will reveal the superior humanism of such a market. For we
must realize that there is a market for children now, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge. This means that we now indeed have a child-market, but that the government enforces a maximum price control of zero, and restricts the market to a few privileged and therefore monopolistic agencies. The result has been a typical market where the price of the commodity is held by government far below the free-market price: an enormous "shortage" of the good. The demand for babies and children is usually far greater than the supply, and hence we see daily tragedies of adults denied the joys of adopting children by prying and tyrannical adoption agencies. In fact, we find a large unsatisfied demand by adults and couples for children, along with a large number of surplus and unwanted babies neglected or maltreated by their parents. Allowing a free market in children would eliminate this imbalance, and would allow for an allocation of babies and children away from parents who dislike or do not care for their children, and toward foster parents who deeply desire such children. Everyone involved: the natural parents, the children, and the foster parents purchasing the children, would be better off in this sort of society. 
In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price. 
The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State. 
First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned: (a) that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children - fortunately, this is now being remedied; and (b) despite the publicity being given to the "battered child syndrome", it has been estimated that only 5 percent of "child abuse" cases involve physical aggression by the parents. 
On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of "child neglect," clearly violate parental rights. These are: failure to provide children with the "proper" food, shelter, medical care, or education; and failure to provide children with a "fit environment." It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is "proper" and "fit." Equally vague are other, corollary, standards allowing the State to seize children whose "optimal development" is not being promoted by the parents, or where the "best interests" of the child (again, all defined by the State) are promoted thereby. A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950 case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was "incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism." In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to "the conventions and the mores of the community in which they are to live." In 1954, in the case of Hunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral. 
Not only religion, but also personal morality has been dictated by the government. In 1962, five children were seized from their mother by a court on the ground that the mother "frequently entertained male companions in the apartment." In other cases, courts have held parents to have "neglected" the child, and thereupon seized the child, because parental quarreling or a child's sense of insecurity allegedly endangered the child's best interests.
In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned of the massive coercive potential of the "best interest" criterion:
A court should not take the custody of a child from their parents solely on the ground that the state or its agencies can find a better home for them. If "the better home" test were the only test, public welfare officials could take children from half the parents in the state whose homes are considered to be the less desirable and place them in the homes of the other half of the population considered to have the more desirable homes. Extending this principle further, we would find that the family believed to have the best home would have the choice of any of our children. 
The rights of children, even more than those of parents, have been systematically invaded by the state. Compulsory school attendance laws, endemic in the United States since the turn of this century, force children either into public schools or into private schools officially approved by the state. Supposedly "humanitarian" child labor laws have systematically forcibly prevented children from entering the labor force, thereby privileging their adult competitors. Forcibly prevented from working and earning a living, and forced into schools which they often dislike or are not suited for, children of ten become "truants", a charge used by the state to corral them into penal institutions in the name of "reform" schools, where children are in effect imprisoned for actions or non-actions that would never be considered "crimes" if committed by adults.
It has, indeed, been estimated that from one-quarter to one-half of "juvenile delinquents" currently incarcerated by the state did not commit acts that would be considered crimes if committed by adults (i.e. aggression against person and property). The "crimes" of these children were in exercising their freedom in ways disliked by the minions of the state: truancy "incorrigibility", running away. Between the sexes, it is particularly girl children who are jailed in this way for "immoral" rather than truly criminal actions. The percentage of girls jailed for immorality ("waywardness," sexual relations) rather than for genuine crimes ranges from 50 to over 80 percent. 
Since the U.S. Supreme Court's decision in the 1967 case of In re Gaulf, juvenile defendants, at least in theory, have been accorded the elementary procedural rights of adults (the right to notice of specific charges, the right to counsel, the right to cross-examine witnesses), but these have only been granted in cases where they have actually been accused of being criminals. As Beatrice Levidow writes, the Gault and similar decisions: 
do not apply to any adjudicatory hearings except those in which the offense charged to the juvenile would be violation of the criminal laws if committed by an adult. Therefore, the safeguards of Kent, Gault, and Winship do not protect the due process rights of juveniles who are dependent, neglected, in need of supervision, truant, run away, or accused of other offenses of which only juveniles can be guilty such as smoking, drinking, staying out late, etc. 
As a result, juveniles are habitually deprived of such elemental procedural rights accorded to adult defendants as the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissibility of hearsay evidence. As Roscoe Pound has written, "the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts." Once in a while, a dissenting judge has leveled a trenchant critique of this system. Thus, Judge Michael Musmanno stated in a 1954 Pennsylvania case: 
Certain constitutional and legal guarantees, such as immunity against self-incrimination, prohibition of hearsay interdiction of ex parte and secret reports, all so jealously upheld in decisions from Alabama to Wyoming, are to be jettisoned in Pennsylvania when the person at the bar of justice is a tender-aged boy or girl."
Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of "immorality," "habitual truancy," "habitual disobedience," "incorrigibility," "ungovernability," "moral depravity," "in danger of becoming morally depraved," "immoral conduct," and even associating with persons of "immoral character." 
Moreover, the tyranny of indeterminate sentencing (see our chapter above on punishment) has been wielded against juveniles, with juveniles often receiving a longer sentence than an adult would have suffered for the same offense. Indeed the rule in contemporary juvenile justice has been to impose a sentence that may leave a juvenile in jail until he reaches the age of majority. Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories - genuine criminals who are called "delinquents," and other, "immoral" children who are called "persons in need of supervision" or PINS. After which, the PINS "offenders" receive longer sentences than the actual juvenile criminals! Thus, in a recent study, Paul Lerman writes:
The range of institutional stay was two to twenty-eight months for delinquents and four to forty-eight months for PINS boys; the median was nine months for delinquents and thirteen months for PINS; and the average length of stay was 10.7 months for delinquents and 16.3 months for PINS. 
The results of length of stay do not include the detention period; the stage of correctional processing prior to placement in an institution. Analyses of recent detention figures for all five boroughs of New York City revealed the following patterns: (1) PINS boys and girls are more likely to be detained than delinquents (54 to 31 percent); and (2) once PINS youth are detained they are twice as likely to be detained for more than 30 days than are regular delinquents (50 to 25 percent). 
Again, it is mainly female juveniles that are punished for "immoral" offenses. A recent study of Hawaii, for example, found that girls charged merely with running away normally spend two weeks in pretrial detention, whereas boys charged with actual crimes are held for only a few days; and that nearly 70 percent of the imprisoned girls in a state training school were incarcerated for immorality offenses, whereas the same was true of only 13 percent for the imprisoned boys. 
The current judicial view, which regards the child as having virtually no rights, was trenchantly analyzed by Supreme Court Justice Abe Fortas in his decision in the Gault case:
The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive. 
These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the State was proceeding as parens patriae (the State as parent). The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historical credentials are of dubious relevance.
...The right of the State, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." ...If his parents default in effectively performing their custodial functions - that is if the child is "delinquent" - the state may interfere. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the State when it seeks to deprive a person of his liberty. 
It may be added that calling an action "civil" or "custody" does not make incarceration any more pleasant or any less incarceration for the victim of the "treatment" or the "rehabilitation." Criminologist Frederick Howlett has trenchantly criticized the juvenile court system, and placed it in a wider libertarian context. He writes of the denial of certain basic rights of individuals - the right to associate with those of their choice and to engage voluntarily in acts that harm no one but themselves. The drunk who clogs our courts should have the right to get drunk; the ...prostitute and her client should not have to answer to the law for an act that is their personal decision. The misbehaving child likewise has a fundamental right to be a child, and if he has committed no act that would be considered criminal were he an adult, why seek recourse through the courts ...? Before rushing to treat or "help" a person outside the justice system, should not the community first consider the alternative of doing nothing? Should it not recognize the child's right, as a person, to non-treatment and noninterference by an outside authority? 
A particularly eloquent judicial defense of the rights of children occurred in an 1870 Illinois decision, years earlier than the modern assertion of state despotism in the juvenile court system, beginning with the turn of the century Progressive period. In his decision in People ex rel. O'Connell v. Turner, Justice Thornton declared: 
The principle of the absorption of the child in, and its complete subjection to the despotism of, the State, is wholly inadmissible in the modern civilized world. ...
These laws provide for the "safe keeping" of the child; they direct his "commitment," and only a "ticket of leave," of the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood by contact with the busy world. ...The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty, can afford no relief, for the sovereign power of the State, as parens patriae, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are thus to be confined for the "good of society," then society had better be reduced to its original elements, and free government acknowledged a failure. ...
The disability of minors does not make slaves or criminals of them. ...Can we hold children responsible for crime; liable for their torts; impose onerous burdens upon them, and yet deprive them of their liberty, without charge or conviction of crime? [The Illinois Bill of Rights, following up on the Virginia Declaration of Rights and the Declaration of Independence, declares that] "all men are, by nature, free and independent, and have certain inherent and inalienable rights - among these life, liberty, and the pursuit of happiness." This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that "all men," all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right - a right independent of all human laws and regulations. ... Even criminals cannot be convicted and imprisoned without due process of law. 

15. "Human Rights" As Property Rights. 
Liberals generally wish to preserve the concept of "rights" for such "human" rights as freedom of speech, while denying the concept to private property. And yet, on the contrary the concept of "rights" only makes sense as property rights. For not only are there no human rights which are not also property rights, but the former rights lose their absoluteness and clarity and become fuzzy and vulnerable when property rights are not used as the standard. 
In the first place, there are two senses in which property rights are identical with human rights: one, that property can only accrue to humans, so that their rights to property are rights that belong to human beings; and two, that the person's right to his own body, his personal liberty, is a property right in his own person as well as a "human right." But more importantly for our discussion, human rights, when not put in terms of property rights, turn out to be vague and contradictory, causing liberals to weaken those rights on behalf of "public policy" or the "public good." As I wrote in another work: 
Take, for example, the "human right" of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate "right to free speech"; there is only a man's property right: the right to do as he wills with his own or to make voluntary agreements with other property owners. 
In short, a person does not have a "right to freedom of speech"; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a "right to freedom of the press"; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra "right of free speech" or free press beyond the property rights that a person may have in any given case. 
Furthermore, couching the analysis in terms of a "right to free speech" instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes's contention that no one has the right to shout "Fire" falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of "public policy." And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary. 
For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating the terms of his being there. For those terms surely include not violating the owner's property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights.
Indeed, Justice Hugo Black, a well-known "absolutist" on behalf of "freedom of speech," made it clear, in a trenchant critique of the Holmes "shouting 'fire' in a crowded theater" argument, that Black's advocacy of freedom of speech was grounded in the rights of private property. Thus Black stated: 
I went to a theater last night with you. I have an idea if you and I had gotten up and marched around that theater, whether we said anything or not, we would have been arrested. Nobody has ever said that the First Amendment gives people a right to go anywhere in the world they want to go or say anything in the world they want to say. Buying the theater tickets did not buy the opportunity to make a speech there. We have a system of property in this country which is also protected by the Constitution. We have a system of property, which means that a man does not have a right to do anything he wants anywhere he wants to do it. For instance, I would feel a little badly if somebody were to try to come into my house and tell me that he had a constitutional right to come in there because he wanted to make a speech against the Supreme Court. I realize the freedom of people to make a speech against the Supreme Court, but I do not want him to make it in my house.
That is a wonderful aphorism about shouting "fire" in a crowded theater. But you do not have to shout "fire" to get arrested. If a person creates a disorder in a theater, they would get him there not because of what he hollered but because he hollered. They would get him not because of any views he had but because they thought he did not have any views that they wanted to hear there. That is the way I would answer not because of what he shouted but because he shouted. 
Some years ago, the French political theorist Bertrand de Jouvenel similarly called for the weakening of free speech and assembly rights in what he called the "chairman's problem" - the problem of allocating time or space in an assembly hall or newspaper, or in front of a microphone, where the writers or speakers believe that they have a "right" of free speech to the use of the resource.  What de Jouvenel overlooked was our solution to the "chairman's problem" - recasting the concept of rights in terms of private property rather than in terms of freedom of speech or assembly.
In the first place, we may notice that in each of de Jouvenel's examples - a man attending an assembly, a person writing to a letters-to-the-editor column, and a man applying for discussion time on the radio - the scarce time or space being offered is free, in the sense of costless. We are in the midst of what economics calls "the rationing problem." A valuable, scarce resource has to be allocated: whether it be time at the podium, time in front of the microphone, or space in a newspaper. But since the use of the resource is free (costless), the demand for obtaining this time or space is bound greatly to exceed the supply, and hence a perceived "shortage" of the resource is bound to develop. As in all cases of shortages and of queueing up caused by low or nonexistent prices, the unsatisfied demanders are left with a feeling of frustration and resentment at not obtaining the use of the resource they believe they deserve. 
A scarce resource, if not allocated by prices, must be allocated in some other way by its owner. It should be noted that the de Jouvenel cases could all be allocated by a price system, if the owner so desired. The chairman of an assembly could ask for price bids for scarce places at the podium and then award the places to the highest bidders. The radio producer could do the same with discussants on his program. (In effect, this is what producers do when they sell time to individual sponsors.) There would then be no shortages, and no feelings of resentment at a promise ("equal access" of the public to the column, podium, or microphone) reneged. 
But beyond the question of prices, there is a deeper matter involved, for whether by prices or by some other criterion, the resource must, in all cases, be allocated by its owner. The owner of the radio station or the program (or his agent) rents, or donates, radio time in a way that he decides; the owner of the newspaper, or his editor-agent, allocates space for letters in any way that he chooses; the "owner" of the assembly, and his designated agent the chairman, allocates the space at the podium in any way he decides.
The fact that ownership is the ultimate allocator gives us the clue to the property solution of de Jouvenel's "chairman's problem". For the fellow who writes a letter to a newspaper is not the owner of the paper; he therefore has no right to, but only a request for, newspaper space, a request which it is the absolute right of the owner to grant or to deny. The man who asks to speak at an assembly has no right to speak, but only a request that the owner or his representative, the chairman, must decide upon. The solution is to recast the meaning of the "right to freedom of speech" or "assembly"; instead of using the vague, and, as de Jouvenel demonstrates, unworkable concept of some sort of equal right to space or time, we should focus on the right of private property. Only when the "right to free speech" is treated simply as a subdivision of property right does it become valid, workable, and absolute.
This can be seen in de Jouvenel's proposed "right to buttonhole." De Jouvenel says that there is a "sense in which the right of speech can be exercised by each and everyone; it is the right to buttonhole," to talk and to try to convince the people one meets, and then to collect these people in a hall, and thus to "constitute a congregation" of one's own. Here de Jouvenel approaches the proper solution without firmly attaining it. For what he is really saying is that "the right to free speech" is only valid and workable when used in the sense of the right to talk to people, to try to convince them, to hire a hall to address people who wish to attend, etc. But this sense of the right to free speech is, in fact, part of a person's general right to his property. (Provided, of course, we remember the right of another person not to be buttonholed if he doesn't want to, i.e., his right not to listen.) For property right includes the right to one's property and to make mutually agreed-upon contracts and exchanges with the owners of other properties. De Jouvenel's "buttonholer," who hires a hall and addresses his congregation, is exercising not a vague "right of free speech," but a part of his general right of property. De Jouvenel almost recognizes this when he considers the case of two men, "Primus" and "Secundus": 
Primus ...has collected through toil and trouble a congregation of his own doing. An outsider, Secundus, comes in and claims the right to address this congregation on grounds of the right of free speech. Is Primus bound to give him the floor? I doubt it. He can reply to Secundus: "I have made up this congregation. Go thou and do likewise." 
Precisely. In short, Primus owns the meeting; he has hired the hall, has called the meeting, and has laid down its conditions; and those who don't like these conditions are free not to attend or to leave. Primus has a property right in the meeting that permits him to speak at will; Secundus has no property right whatever, and therefore no right to speak at the meeting. 
In general, those problems where rights seem to require weakening are ones where the locus of ownership is not precisely defined, in short where property rights are muddled. Many problems of "freedom of speech," for example, occur in the government-owned streets: e.g., should a government permit a political meeting which it claims will disrupt traffic, or litter streets with handbills? But all of such problems which seemingly require "freedom of speech" to be less than absolute, are actually problems due to the failure to define property rights. For the streets are generally owned by government; the government in these cases is "the chairman". And then government, like any other property owner, is faced with the problem of how to allocate its scarce resources. A political meeting on the streets will, let us say, block traffic; therefore, the decision of government involves not so much a right to freedom of speech as it involves the allocation of street space by its owner.
The whole problem would not arise, it should be noted, if the streets were owned by private individuals and firms - as they all would be in a libertarian society; for then the streets, like all other private property, could be rented by or donated to other private individuals or groups for the purpose of assembly. One would, in a fully libertarian society, have no more "right" to use someone else's street than he would have the "right to preempt someone else's assembly hall; in both cases, the only right would be the property right to use one's money to rent the resource, if the landlord is willing. Of course, so long as the streets continue to be government owned, the problem and the conflict remain insoluble; for government ownership of the streets means that all of one's other property rights, including speech, assembly distribution of leaflets, etc., will be hampered and restricted by the ever-present necessity to traverse and use government-owned streets, which government may decide to block or restrict in any way. If the government allows the street meeting, it will restrict traffic; if it blocks the meeting in behalf of the flow of traffic, it will block the freedom of access to the government streets. In either case, and whichever way it chooses, the "rights" of some taxpayers will have to be curtailed. 
The other place where the rights and locus of ownership are ill-defined and hence where conflicts are insoluble is the case of government assemblies (and their "chairmen"). For, as we have pointed out, where one man or group hires a hall, and appoints a chairman, the locus of ownership is clear and Primus has his way. But what of governmental assemblies? Who owns them? No one really knows, and therefore there is no satisfactory or non-arbitrary way to resolve who shall speak and who shall not, what shall be decided and what shall not. True, the government assembly forms itself under its own rules, but then what if these rules are not agreeable to a large body of the citizenry? There is no satisfactory way to resolve this question because there is no clear locus of property right involved. To put it another way: in the case of the newspaper or radio program, it is clear that the letter-writer or would-be discussant is the petitioner, and the publisher or producer the owner who makes the decision. But in the case of the governmental assembly, we do not know who the owner may be. The man who demands to be heard at a town meeting claims to be a part owner, and yet he has not established any sort of property right through purchase, inheritance, or discovery, as have property owners in all other areas. 
To return to the streets, there are other vexed problems which would be quickly cleared up in a libertarian society where all property is private and clearly owned. In the current society for example, there is continuing conflict between the "right" of taxpayers to have access to government-owned streets, as against the desire of residents of a neighborhood to be free of people whom they consider "undesirable" gathering in the streets. In New York City, for example, there are now hysterical pressures by residents of various neighborhoods to prevent McDonald's food stores from opening in their area, and in many cases they have been able to use the power of local government to prevent the stores from moving in. These, of course, are clear violations of the right of McDonald's to the property which they have purchased. But the residents do have a point: the litter, and the attraction of "undesirable" elements who would be "attracted" to McDonald's and gather in front of it - on the streets. In short, what the residents are really complaining about is not so much the property right of McDonald's as what they consider the "bad" use of the government streets. They are, in brief, complaining about the "human right" of certain people to walk at will on the government streets. But as taxpayers and citizens, these "undesirables" surely have the "right" to
walk on the streets, and of course they could gather on the spot, if they so desired, without the attraction of McDonald's. In the libertarian society, however, where the streets would all be privately owned, the entire conflict could be resolved without violating anyone's property rights: for then the owners of the streets would have the right to decide who shall have access to those streets, and they could then keep out "undesirables" if they so wished. 
Of course, those street-owners who decided to keep out "undesirables" would have to pay the price -both the actual costs of policing as well as the loss of business to the merchants on their street and the diminished flow of visitors to their homes. Undoubtedly in the free society there would result a diverse pattern of access, with some streets (and therefore neighborhoods) open to all, and others with varying degrees of restricted access. 
Similarly, the private ownership of all streets would resolve the problem of the "human right" to freedom of immigration. There is no question about the fact that current immigration barriers restrict not so much a "human right" to immigrate, but the right of property owners to rent or sell property to immigrants. There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if "Primus" wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don't want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.
The libertarian society would resolve the entire "immigration question" within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise. 

16. Knowledge, True and False. 
Our theory of property rights can be used to unravel a tangled skein of complex problems revolving around questions of knowledge, true and false, and the dissemination of that knowledge. Does
Smith, for example, have the right (again, we are concerned about his right, not the morality or esthetics of his exercising that right) to print and disseminate the statement that "Jones is a liar" or that "Jones is a convicted thief" or that "Jones is a homosexual"? There are three logical possibilities about the truth of such a statement: (a) that the statement about Jones is true; (b) that it is false and Smith knows it is false; or (c) most realistically, that the truth or falsity of the statement is a fuzzy zone, not certainly and precisely knowable (e.g., in the above cases, whether or not someone is a "liar" depends on how many and how intense the pattern of lies a person has told and is adjudged to add up to the category of "liar" - an area where individual judgments can and will properly differ). 
Suppose that Smith's statement is definitely true. It seems clear, then, that Smith has a perfect right to print and disseminate the statement. For it is within his property right to do so. It is also, of course, within the property right of Jones to try to rebut the statement in his turn. The current libel laws make Smith's action illegal if done with "malicious" intent, even though the information be true. And yet, surely legality or illegality should depend not on the motivation of the actor, but on the objective nature of the act. If an action is objectively non-invasive, then it should be legal regardless of the benevolent or malicious intentions of the actor (though the latter may well be relevant to the morality of the action). And this is aside from the obvious difficulties in legally determining an individual's subjective motivations for any action.
It might, however, be charged that Smith does not have the right to print such a statement, because Jones has a "right to privacy" (his "human" right) which Smith does not have the right to violate. But is there really such a right to privacy? How can there be? How can there be a right to prevent Smith by force from disseminating knowledge which he possesses? Surely there can be no such right. Smith owns his own body and therefore has the property right to own the knowledge he has inside his head, including his knowledge about Jones. And therefore he has the corollary right to print and disseminate that knowledge. In short, as in the case of the "human right" to free speech, there is no such thing as a right to privacy except the right to protect one's property from invasion. The only right "to privacy', is the right to protect one's property from being invaded by someone else. In brief, no one has the right to burgle someone else's home, or to wiretap someone's phone lines. Wiretapping is properly a crime not because of some vague and woolly "invasion of a 'right to privacy'," but because it is an invasion of the property right of the person being wiretapped.
At the present time, the courts distinguish between persons "in the public eye" who are adjudged not to have a right to privacy against being mentioned in the public press, and "private" persons who are considered to have such a right. And yet, such distinctions are surely fallacious. To the libertarian, everyone has the same right in his person and in the goods which he finds, inherits, or buys - and it is illegitimate to make distinctions in property right between one group of people and another. If there were some sort of "right to privacy," then simply being mentioned widely in the press (i.e. previous losses of the "right") could scarcely warrant being deprived of such right completely. No, the only proper course is to maintain that no one has any spurious "right to privacy," or right not to be mentioned publicly; while everyone has the right to protect his property against invasion. No one can have a property right in the knowledge in someone else's head.
In recent years, Watergate and the Pentagon Papers have brought to the fore such questions as privacy the "privileges" of newspapermen, and the "public's right to know". Should, for example, a newspaperman have the right to "protect his sources of information" in court? Many people claim that newspapermen have such a right, basing that claim either (a) on special "privileges" of confidentiality allegedly accruing to newspapermen, lawyers, doctors, priests and psychoanalysts, and/or (b) on the "public's right to know" and hence on the widest possible knowledge as disseminated in the press. And yet, it should be clear by this point that both such claims are spurious. On the latter point, no one person or group of people (and therefore "the public") has the right to know anything. They have no right to knowledge which other people have and refuse to disseminate. For if a man has the absolute right to disseminate knowledge inside his head, he also has the corollary right not to disseminate that knowledge. There is no "right to know"; there is only the right of the knower to either disseminate his knowledge or to keep silent. Neither can any particular profession, be it newsmen or physicians, claim any particular right of confidentiality which is not possessed by anyone else. Rights to one's liberty and property must be universal.
The solution to the problem of the newsman's sources, indeed, rests in the right of the knower -any knower - to keep silent, to not disseminate knowledge if he so desires. Hence, not only newsmen and physicians, but everyone should have the right to protect their sources, or to be silent, in court or anywhere else. And this, indeed, is the other side of the coin of our previous strictures against the compulsory subpoena power. No one should be forced to testify at all, not only against himself (as in the Fifth Amendment) but against or for anyone else. Compulsory testimony itself is the central evil in this entire problem. 
There is, however, an exception to the right to use and disseminate the knowledge within one's head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown's hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention any way, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief. 
Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap "copyright Mr. Brown." What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright. 
A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green's mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown - but only all rights except to sell it or a replica. But, therefore Black's title in the mousetrap, the ownership of the ideas in Black's head, can be no greater than Green's, and therefore he too would be a violator of Brown's property even though he himself had not made the actual contract. 
Of course, there may be some difficulties in the actual enforcement of Brown's property right. Namely, that, as in all cases of alleged theft or other crime, every defendant is innocent until proven guilty. It would be necessary for Brown to prove that Black (Green would not pose a problem) had access to Brown's mousetrap, and did not invent this kind of mousetrap by himself independently. By the nature of things, some products (e.g., books, paintings) are easier to prove to be unique products of individual minds than others (e.g., mousetraps). 
If, then, Smith has the absolute right to disseminate knowledge about Jones (we are still assuming that the knowledge is correct) and has the corollary right to keep silent about that knowledge, then, a fortiori, surely he also has the right to go to Jones and receive payment in exchange for not disseminating such information. In short, Smith has the right to "blackmail" Jones. As in all voluntary exchanges, both parties benefit from such an exchange: Smith receives money, and Jones obtains the service of Smith's not disseminating information about him which Jones does not wish to see others possess. The right to blackmail is deducible from the general property right in one's person and knowledge and the right to disseminate or not disseminate that knowledge. How can the right to blackmail be denied? 
Furthermore, as Professor Walter Block has trenchantly pointed out, on utilitarian grounds the consequence of outlawing blackmail -e.g., of preventing Smith from offering to sell his silence to Jones - will be to encourage Smith to disseminate his information, since he is coercively blocked from selling his silence. The result will be an increased dissemination of derogatory information, so that Jones will be worse off from the outlawry of blackmail than he would have been if blackmail had been permitted. 
Thus Block writes: 
What, exactly is blackmail? Blackmail is the offer of a trade; it is the offer to trade something, usually silence, for some other good, usually money. If the offer of the blackmail trade is accepted, then the blackmailer maintains his silence and the blackmailee pays the agreed amount of money. If the blackmail offer is rejected, then the blackmailer may exercise his right of free
speech, and perhaps announce and publicize the secret. ...
The only difference between a gossip and blabbermouth and the blackmailer is that the blackmailer will refrain from speaking for a price. In a sense, the gossip or the blabbermouth is much worse than the blackmailer, for the blackmailer at least gives you a chance to shut him up. The blabbermouth and gossip just up and spill the beans. A person with a secret he wants kept will be much better off if a blackmailer rather than a gossip or blabbermouth gets hold of it. With the blabber-mouth or gossip, as we have said, all is lost. With the blackmailer, one can only gain, or at worst, be no worse off. If the price required by the blackmailer for his silence is worth less than the secret, the secret-holder will pay off, and accept the lesser of the two evils. He will gain the difference to him between the value of the secret and the price of the blackmailer. It is only in the case that the blackmailer demands more than the secret is worth that the information gets publicized. But in this case the secret-keeper is no worse off with the blackmailer than with the inveterate gossip. ...It is indeed difficult, then, to account for the vilification suffered by the blackmailer, at least compared to the gossip who is usually dismissed with merely slight contempt. 
There are other, and less important problems, with the outlawry of a blackmail contract. Suppose that, in the above case, instead of Smith going to Jones with an offer of silence, Jones had heard of Smith's knowledge and his intent to print it, and went to Smith to offer to purchase the latter's silence? Should that contract be illegal? And if so, why? But if Jones's offer should be legal while Smith's is illegal, should it be illegal for Smith to turn down Jones's offer, and then ask for more money as the price of his silence? And, furthermore, should it be illegal for Smith to subtly let Jones know that Smith has the information and intends to publish, and then allow Jones to make the actual offer? But how could this simple letting Jones know in advance be considered as illegal? Could it not be rather construed as a simple act of courtesy to Jones? The shoals get muddier and muddier, and the support for outlawry of blackmail contracts - especially by libertarians who believe in property rights - becomes ever more flimsy. 
Of course, if Smith and Jones make a blackmail contract, and then Smith violates it by printing the information anyway, then Smith has stolen Jones's property (his money), and can be prosecuted as in the case of any other thief who has aggressed against property rights by violating a contract. But there is nothing unique about blackmail contracts in this regard.
In contemplating the law of a free society, therefore, the libertarian must look at people as acting within a general framework of absolute property rights and of the conditions of the world around them at any given time. In any exchange, any contract, that they make, they believe that they will be better off from making the exchange. Hence all of these contracts are "productive" in making them, at least prospectively, better off. And, of course, all of these voluntary contracts are legitimate and licit in the free society. 
We have therefore affirmed the legitimacy (the right) of Smith's either disseminating knowledge about Jones, keeping silent about the knowledge, or engaging in a contract with Jones to sell his silence. We have so far been assuming that Smith's knowledge is correct. Suppose, however, that the knowledge is false and Smith knows that it is false (the "worst" case). Does Smith have the right to disseminate false information about Jones? In short, should "libel" and "slander" be illegal in the free society? 
And yet, once again, how can they be? Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a "thief" even if he knows it to be false, and to print and sell that statement. The counter-view, and the current basis for holding libel and slander (especially of false statements) to be illegal is that every man has a "property right" in his own reputation, that Smith's falsehoods damage that reputation, and that therefore Smith's libels are invasions of Jones's property right in his reputation and should be illegal. Yet, again, on closer analysis this is a fallacious view. For everyone, as we have stated, owns his own body; he has a property right in his own head and person. But since every man owns his own mind, he cannot therefore own the minds of anyone else. And yet Jones's "reputation" is neither a physical entity nor is it something contained within or on his own person. Jones's "reputation" is purely a function of the subjective attitudes and beliefs about him contained in the minds of other people. But since these are beliefs in the minds of others, Jones can in no way legitimately own or control them. Jones can have no property right in the beliefs and minds of other people. 
Let us consider, in fact, the implications of believing in a property right in one's "reputation." Suppose that Brown has produced his mousetrap, and then Robinson comes out with a better one. The "reputation" of Brown for excellence in mousetraps now declines sharply as consumers shift their attitudes and their purchases, and buy Robinson's mousetrap instead. Can we not then say, on the principle of the "reputation" theory, that Robinson has injured the reputation of Brown, and can we not then outlaw Robinson from competing with Brown? If not, why not? Or should it be illegal for Robinson to advertise, and to tell the world that his mousetrap is better? In fact, of course, people's subjective attitudes and ideas about someone or his product will fluctuate continually, and hence it is impossible for Brown to stabilize his reputation by coercion; certainly it would be immoral and aggressive against other people's property right to try. Aggressive and criminal, then, either to outlaw one's competition or to outlaw false libels spread about one or one's product.
We can, of course, readily concede the gross immorality of spreading false libels about another person. But we must, nevertheless, maintain the legal right of anyone to do so. Pragmatically, again, this situation may well redound to the benefit of the people being libelled. For, in the current situation, when false libels are outlawed, the average person tends to believe that all derogatory reports spread about people are true, "otherwise they'd sue for libel." This situation discriminates against the poor, since poorer people are less likely to file suits against libelers. Hence, the reputations of poorer or less wealthy persons are liable to suffer more now, when libel is outlawed, then they would if libel were legitimate. For in that libertarian society since everyone would know that false stories are legal, there would be far more skepticism on the part of the reading or listening public, who would insist on far more proof and believe fewer derogatory stories than they do now. Furthermore, the current system discriminates against poorer people in another way; for their own speech is restricted, since they are less likely to disseminate true but derogatory knowledge about the wealthy for fear of having costly libel suits filed against them. Hence, the outlawing of libel harms people of limited means in two ways: by making them easier prey for libels and by hampering their own dissemination of accurate knowledge about the wealthy.
Finally, if anyone has the right knowingly to spread false libels about someone else, then, a fortiori, he of course has the right to disseminate those large numbers of statements about others which are in the fuzzy zone of not being clear or certain whether or not the statements are true or false.

17. Bribery. 
As in the case of blackmail, bribery has received a uniformly bad press, and it is generally assumed that bribery should be outlawed. But is this necessarily true? Let us examine a typical bribe contract. Suppose that Black wants to sell materials to the XYZ Company. In order to
gain the sale, he pays a bribe to Green, the purchasing agent of the company. It is difficult to see what Black has done which libertarian law should consider as illegal. In fact, all he has done is to lower the price charged to the XYZ Company by paying a rebate to Green. From Black's point of view, he would have been just as happy to charge a lower price directly, though presumably he did not do so because the XYZ executives would still not have purchased the materials from him. But the inner workings of the XYZ Company should scarcely be Black's responsibility. As far as he is concerned, he simply lowered his price to the Company, and thereby gained the contract.
The illicit action here is, instead, solely the behavior of Green, the taker of the bribe. For Green's employment contract with his employers implicitly requires him to purchase materials to the best of his ability in the interests of his company. Instead, he violated his contract with the XYZ company by not performing as their proper agent: for because of the bribe he either bought from a firm which he would not have dealt with otherwise, or he paid a higher price than he need have by the amount of his rebate. In either case, Green violated his contract and invaded the property rights of his employers. 
In the case of bribes, therefore, there is nothing illegitimate about the briber, but there is much that is illegitimate about the bribee, the taker of the bribe. Legally, there should be a property right to pay a bribe, but not to take one. It is only the taker of a bribe who should be prosecuted. In contrast, liberals tend to hold the bribe-giver as somehow more reprehensible, as in some way "corrupting" the taker. In that way they deny the free will and the responsibility of each individual for his own actions. 
Let us now use our theory to analyze the problem of payola, which repeatedly arises on radio programs that play popular records. In a typical payola scandal, a record company bribes a disc jockey to play Record A. Presumably, the disc jockey would either not have played the record at all or would have played Record A fewer times; therefore, Record A is being played at the expense of Records B, C, and D which would have been played more frequently if the disc jockey had evaluated the records purely on the basis of his own and/or the public's taste. Surely,in a moral sense, the public is being betrayed in its trust in the disc jockey's sincerity. That trust turns out to have been a foolish one. But the public has no property rights in the radio program, and so they have no legal complaint in the matter. They received the program without cost. The other record companies, the producers of Records B, C, and D, were also injured since their products were not played as frequently, but they too, have no property rights in the program, and they have no right to tell the disc jockey what to play. 
Was anyone's property rights aggressed against by the disc jockey's taking of a bribe? Yes, for as in the case of the bribed purchasing agent, the disc jockey violated his contractual obligation to his employer - whether it be the station owner or the sponsor of the program - to play those records which in his view will most suit the public. Hence, the disc jockey violated the property of the station owner or sponsor. Once again, it is the disc jockey who accepts payola who has done something criminal and deserves to be prosecuted, but not the record company who paid the bribe.
Furthermore, if the record company had bribed the employer directly - whether the station owner or the sponsor - then there would have been no violation of anyone's property right and therefore properly no question of illegality. Of course, the public could easily feel cheated if the truth came out, and would then be likely to change their listening custom to another station or sponsor.
What about the case of plugola, where one sponsor pays for the program, and another company pays the producer of the program to plug its own product? Again, the property right being violated is that of the sponsor, who pays for the time and is entitled therefore to have sole advertising rights on the program. The violator of his property is not the maverick company that pays the bribe, but the producer who violates his contract with the sponsor by accepting it.

18. The Boycott. 
A boycott is an attempt to persuade other people to have nothing to do with some particular person or firm - either socially or in agreeing not to purchase the firm's product. Morally a boycott may be used for absurd, reprehensible, laudatory, or neutral goals. It may be used, for example, to attempt to persuade people not to buy non-union grapes or not to buy union grapes. From our point of view, the important thing about the boycott is that it is purely voluntary, an act of attempted persuasion, and therefore that it is a perfectly legal and licit instrument of action. Again, as in the case of libel, a boycott may well diminish a firm's customers and therefore cut into its property values; but such an act is still a perfectly legitimate exercise of free speech and property rights. Whether we wish any particular boycott well or ill depends on our moral values and on our attitudes toward the concrete goal or activity. But a boycott is legitimate per se. If we feel a given boycott to be morally reprehensible, then it is within the rights of those who feel this way to organize a counter-boycott to persuade the consumers otherwise, or to boycott the boycotters. All this is part of the process of dissemination of information and opinion within the framework of the rights of private property. 
Furthermore, "secondary" boycotts are also legitimate, despite their outlawry under our current labor laws. In a secondary boycott, labor unions try to persuade consumers not to buy from firms who deal with non-union (primary boycotted) firms. Again, in a free society, it should be their right to try such persuasion, just as it is the right of their opponents to counter with an opposing boycott. In the same way it is the right of the League of Decency to try to organize a boycott of pornographic motion pictures, just as it would be the right of opposing forces to organize a boycott of those who give in to the League's boycott. 
Of particular interest here is that the boycott is a device which can be used by people who wish to take action against those who engage in activities which we consider licit but which they consider immoral. Thus, while non-union firms, pornography, libel, or whatever would be legal in a free society, so would it be the right of those who find such activities morally repugnant to organize boycotts against those who perform such activities. Any action would be legal in the libertarian society, provided that it does not invade property rights (whether of self-ownership or of material objects), and this would include boycotts against such activities, or counter-boycotts against the boycotters. The point is that coercion is not the only action that can be taken against what some consider to be immoral persons or activities; there are also such voluntary and persuasive actions as the boycott. 
Whether picketing as a form of advertising a boycott would be legitimate in a free society is a far more complex question. Obviously, mass picketing that blocked entrance or egress from a building would be criminal and invasive of the rights of property - as would be sit-ins and sit-down strikes that forcibly occupied the property of others. Also invasive would be the type of picketing in which demonstrators threatened people who crossed the picket line -a clear case of intimidation by threat of violence. But even "peaceful picketing" is a complex question, for once again the use of government streets is involved. And, as in the case of assembly or street demonstrations generally, the government cannot make a non-arbitrary decision between the rights of taxpayers to use government streets to demonstrate their cause, and the right of the building owner and of traffic to use the streets as well. Again, it is impossible for government to decide in such a way as to eliminate conflict and to uphold rights in a clear-cut manner. If, on the other hand, the street in front of the picketed building were owned by private owners, then these owners would have the absolute right to decide on whether picketers could use their street in any way that the owners saw fit. 
Similarly, such employer devices as the blacklist - a form of boycott - would be legal in the free society. Before the Norris-LaGuardia Act of 1931, it was legal for employers to fire union organizers among their employees, and to circulate blacklists of such persons to other employers. Also legal would be the "yellow-dog contract", another device before the Norris-LaGuardia Act. In such a contract, the employee and the employer agree that, should the former join a union, the employer can fire him forthwith. 

19. Property Rights and the Theory of Contracts. 
The right of property implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person. Unfortunately, many libertarians, devoted to the right to make contracts, hold the contract itself to be an absolute, and therefore maintain that any voluntary contract whatever must be legally enforceable in the free society. Their error is a failure to realize that the right to contract is strictly derivable from the right of private property, and therefore 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. In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party's property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the "title-transfer" theory of contracts. 
Let us illustrate this point. Suppose that Smith and Jones make a contract, Smith giving $1000 to Jones at the present moment, in exchange for an IOU of Jones, agreeing to pay Smith $1100 one year from now. This is a typical debt contract. What has happened is that Smith has transferred his title to ownership of $1000 at present in exchange for Jones agreeing now to transfer title to Smith of $1100 one year from now. Suppose that, when the appointed date arrives one year later, Jones refuses to pay. Why should this payment now be enforceable at libertarian law? Existing law (which will be dealt with in greater detail below) largely contends that Jones must pay $1100 because he has "promised" to pay, and that this promise set up in Smith's mind the "expectation" that he would receive the money. 
Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one's promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises). 
Our contention here is that Jones must pay Smith $1100 because he had already agreed to transfer title, and that non-payment means that Jones is a thief, that he has stolen the property of Smith. In short, Smith's original transfer of the $1000 was not absolute, but conditional, conditional on Jones paying the $1100 in a year, and that, therefore, the failure to pay is an implicit theft of Smith's rightful property. 
Let us examine, on the other hand, the implications of the now prevalent "promise" or "expectations" theory of contracts. Suppose that A promises to marry B; B proceeds to make wedding plans, incurring costs of preparing for the wedding. At the last minute, A changes his or her mind, thereby violating this alleged "contract." What should be the role of a legal enforcing agency in the libertarian society? Logically, the strict believer in the "promise" theory of contracts would have to reason as follows: A voluntarily promised B that he or she would marry the other, this set up the expectation of marriage in the other's mind; therefore this contract must be enforced. A must be forced to marry B. 
As far as we know, no one has pushed the promise theory this far. Compulsory marriage is such a clear and evident form of involuntary slavery that no theorist, let alone any libertarian, has pushed the logic to this point. Clearly, liberty and compulsory slavery are totally incompatible, indeed are diametric opposites. But why not, if all promises must be enforceable contracts? 
A milder form of enforcing such marriage promises has, however, been employed, let alone advocated, in our legal system. The old "breach of promise" suit forced the violator of his promise to pay damages to the promisee, to pay the expenses undergone because of the expectations incurred. But while this does not go as far as compulsory slavery, it is equally invalid. For there can be no property in someone's promises or expectations; these are only subjective states of mind, which do not involve transfer of title, and therefore do not involve implicit theft. They therefore should not be enforceable, and, in recent years, "breach of promise" suits, at least, have ceased to be upheld by the courts. The important point is that while enforcement of damages is scarcely as horrendous to the libertarian as compulsory enforcement of the promised service, it stems from the same invalid principle. 
Let us pursue more deeply our argument that mere promises or expectations should not be enforceable. The basic reason is that the only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, "stuck" with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man's natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so. 
Or, as Williamson Evers points out, the philosophical defenses of human rights are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid. 
Hence, the un-enforceability, in libertarian theory, of voluntary slave contracts. Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter's orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention - and one that is fortunately upheld under present law - is that Smith's promise was not a valid (i-e., not an enforceable) contract. There is no transfer of title in Smith's agreement, because Smith's control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. Smith's agreement was a mere promise, which it might be held he is morally obligated to keep, but which should not be legally obligatory.
In fact, to enforce the promise would be just as much compulsory slavery as the compulsory marriage considered above. But should Smith at least be required to pay damages to the Jones Corporation, measured by the expectations of his lifelong service which the Jones Corporation had acquired? Again, the answer must be no. Smith is not an implicit thief; he has retained no just property of the Jones Corporation, for he always retains title to his own body and person.
What of the dashed expectations of the Jones Corporation? The answer must be the same as in the case of the disappointed suitor or bride. Life is always uncertain, always risky. Some people are better and some are poorer "entrepreneurs," i.e., forecasters of future human action and events of the world. The prospective bride or bridegroom, or the Jones Corporation, are the proper locus of risk in this matter; if their expectations are disappointed, well then, they were poor forecasters in this case, and they will remember the experience when dealing with Smith or the breacher -of -marriage -promise in the future. 
If mere promises or expectations cannot be enforceable, but only contracts that transfer property titles, we can now see the application of the contrasting contract theories to an important real-life case: do enlistee-deserters from the army, as well as draftees, deserve total amnesty for their actions? Libertarians, being opposed to the draft as compulsory slavery, have no difficulty in calling for total exoneration for deserting draftees. But what of enlistees, who enlisted in the army voluntarily (and setting aside the case of those who may have enlisted only as an alternative to the compulsory draft)? The "promise" theorist must, strictly, advocate both punishment of the deserters and their compulsory return to the armed forces. The title-transfer theorist, on the contrary, maintains that every man has the inalienable right to control his own body and will, since he has that inalienable control in natural fact. And, therefore, that the enlistment was a mere promise, which cannot be enforceable, since every man has the right to change his mind at any time over the disposition of his body and will. Thus, seemingly minor and abstruse differences over the theory of contracts can and do imply vital differences over public policy. 
In contemporary America, outside the glaring exception of the armed forces, everyone has the right to quit his job regardless of whatever promise or "contract" he had previously incurred. Unfortunately, however, the courts, while refusing to compel specific personal performance of an employee agreement (in short, refusing to enslave the worker) do prohibit the worker from working at a similar task for another employer for the term of the agreement. If someone has signed an agreement to work as an engineer for ARAMCO for five years, and he then quits the job, he is prohibited by the courts from working for a similar employer for the remainder of the five years. It should now be clear that this prohibited employment is only one step removed from direct compulsory slavery, and that it should be completely impermissible in a libertarian society.
Have the employers, then, no recourse against the mind changer? Of course they do. They can, if they wish, voluntarily agree to blacklist the errant worker, and refuse to employ him. That is perfectly within their rights in a free society; what is not within their rights is to use violence to prevent him from working voluntarily for someone else. One more recourse would be permissible. Suppose that Smith, when making his agreement for lifelong voluntary obedience to the Jones Corporation, receives in exchange $1,000,000 in payment for these expected future services. Clearly, then, the Jones Corporation had transferred title to the $1,000,000 not absolutely, but conditionally on his performance of lifelong service. Smith has the absolute right to change his mind, but he no longer has the right to keep the $1,000,000. If he does so, he is a thief of the Jones Corporation's property; he must, therefore, be forced to return the $1,000,000 plus interest. For, of course, the title to the money was, and remains, alienable. 
Let us take a seemingly more difficult case. Suppose that a celebrated movie actor agrees to appear at a certain theater at a certain date. For whatever reason, he fails to appear. Should he be forced to appear at that or at some future date? Certainly not, for that would be compulsory slavery. Should he be forced, at least, to recompense the theater owners for the publicity and other expenses incurred by the theater owners in anticipation of his appearance? No again, for his agreement was a mere promise concerning his inalienable will, which he has the right to change at any time. Put another way, since the movie actor has not yet received any of the theater owners' property, he has committed no theft against the owners (or against anyone else), and therefore he cannot be forced to pay damages. The fact that the theater owners may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the owners, but that is their proper risk. The theater owners should not expect the actor to be forced to pay for their lack of foresight and poor entrepreneurship. The owners pay the penalty for placing too much confidence in the actor. It may be considered more moral to keep promises than to break them, but any coercive enforcement of such a moral code, since it goes beyond the prohibition of theft or assault, is itself an invasion of the property rights of the movie actor and therefore impermissible in the libertarian society.
Again, of course, if the actor received an advance payment from the theater owners, then his keeping the money while not fulfilling his part of the contract would be an implicit theft against the owners, and therefore the actor must be forced to return the money. 
For utilitarians shocked at the consequences of this doctrine, it should be noted that many, if not all, of the problems could be easily surmounted in the libertarian society by the promisee's requiring a performance bond of the promissor in the original agreement. In short, if the theater owners wished to avoid the risk of non-appearance, they could refuse to sign the agreement unless the actor agreed to put up a performance bond in case of non-appearance. In that case, the actor, in the course of agreeing to his future appearance, agrees also to transfer a certain sum of money to the theater owners in case he fails to appear. Since money, of course, is alienable, and since such a contract would meet our title-transfer criterion, this would be a perfectly valid and enforceable contract. For what the actor would be saying is: "If I do not appear at Theater X at such and such a date, I hereby transfer as of the date the following sum ____ to the theater owners." Failure to meet the performance bond will then be an implicit theft of the property of the owners. If, then, the theater owners fail to require a performance bond as part of the agreement, then they must suffer the consequences. 
Indeed, in an important article, A.W.B. Simpson has pointed out that performance bonds were the rule during the Middle Ages and in the early modern period, not only for personal services but for all contracts, including sales of land and money debts. These performance bonds evolved on the market as voluntary penalty or penal bonds, in which the contractor obligated himself to pay what was usually twice the sum he owed in case of failure to pay his debt or fulfill his contract at the agreed-upon date. The voluntarily contracted penalty served as an incentive for him to fulfill his contract. Thus, if A agreed to sell a parcel of land in exchange for B's agreed upon payment of a money price, each would obligate himself to pay a certain sum, usually twice the value of his contractual obligation, in case of failure to pay. In the case of a money debt, called "a common money bond," someone who owed $1000 agreed to pay $2000 to the creditor if he failed to pay $1000 by a certain date. (Or, more strictly the obligation to pay $2000 was conditional upon the debtor's paying $1000 by a certain date. Hence the term "conditional penal bond." In the above example of a contract to perform personal service, suppose that the failure of the actor to appear cost the theater owner $10,000 in damages; in that case, the actor would sign, or "execute," a penal performance bond, agreeing to pay $20,000 to the theater owner upon failure to appear. In this sort of contract, the theater owner is protected, and there is no improper enforcement of a mere promise (Of course, the agreed-upon penalty does not have to be twice the estimated value; it can be any amount assented to by the contracting parties. The double amount became the custom in medieval and early modern Europe.) 
In the course of his article, Simpson revises the orthodox historical account of the development of modern contract law: the view that the theory of assumpsit - of basing the enforcement of a contract upon a mere promise, albeit with consideration - was necessary to provide a workable system of contract enforcement in supplement to the crude property-rights concepts of the common law. For Simpson shows that the rise of assumpsit in the sixteenth and seventeenth centuries in England was not the result of new-found attention to the world of business contracts but rather a replacement for the rapid decline of the penal performance bond, which had served business needs well enough for centuries. Indeed, Simpson points out that the performance bond proved to be a remarkably flexible instrument for the handling of complex as well as simple contracts and agreements. And the performance bond was formal enough to guard against fraud, yet easy enough to execute for the convenience of commercial transactions. Furthermore, in its centuries of use, almost no creditors bothered to sue in the courts for "damages" (in a "writ of covenant"), since the "damages" had been fixed in advance in the contract itself. As Simpson writes: 
there are obvious attractions from a creditor's point of view in contracts which fix a penalty in advance, especially when the alternative is assessment of damages by juries. 
But why the decline of the penal bond? Because the courts began to refuse to enforce these obligations. For whatever the reason, whether for misguided "humanitarian" or for more sinister reasons of special privilege, the courts began to balk at the toughness of the law, at the fact that they had been enforcing contracts to their full extent. For the bond meant that "for any default in performance the whole penalty was forfeit." At first, during the Elizabethan era, the Courts of Chancery began intervening to relieve the debtor (the obligor) in cases of "extreme hardship." By the early seventeenth century, this relief was broadened to all cases in which misfortune befell the obligor and where he paid the contracted amount a short time later; in such cases, he only had to pay the principal (contracted amount) plus what the courts decided were "reasonable damages" - thus waiving the requirement to pay the agreed-on penalty. The intervention expanded further in later years until, finally, in the 1660s and early 1670s,the Chancery Courts simply outlawed penalty payments altogether, whatever the contract, and only required the defaulting obligor or debtor to pay the principal plus interest costs, as well as "reasonable damages" assessed by the court itself - usually by a jury. This rule was swiftly adopted by the common-law courts in the 1670s, and then formalized and regularized by statutes at the turn of the eighteenth century. Naturally, since bonded penalties were no longer enforced by the courts, the institution of the penal performance bond swiftly disappeared.
The unfortunate suppression of the performance bond was the result of a mistaken theory of contract enforcement that the courts had adopted in the first place: namely, that the purpose of enforcement was to compensate the creditor or obligee for: the default of the debtor -i.e., to make him as well off as he would have been without the making of the contract. In previous centuries, the courts had felt that "compensation" consisted of enforcing the penal bond; it then became fairly easy for the courts to change their minds, and to decide that court assessed "damages" were compensation enough, relieving the "harshness" of the voluntarily stipulated penalty. The theory of contract enforcement should have had nothing to do with "compensation"; its purpose should always be to enforce property rights, and to guard against the implicit theft of breaking contracts which transfer titles to alienable property. Defense of property titles - and only such defense - is the business of enforcement agencies. Simpson writes perceptively of the tension between two ideas. On the one hand we have the idea that the real function of contractual institutions is to make sure, so far as possible, that agreements are performed [e.g., the enforcement of the penal bond]. On the other hand we have the idea that it suffices for the law to provide compensation for loss suffered by failure to perform agreements.
The latter view places severe limits on the enthusiasm with which performance is required; moreover, in contracts for personal services (such as the actor example above), "a positive value is attached to the right to break the contract so long as the defaulting party is made to pay compensation. 
What of gift contracts? Should they be legally enforceable? Again, the answer depends on whether a mere promise has been made, or whether an actual transfer of title has taken place in the agreement. Obviously, if A says to B, "I hereby give you $10,000," then title to the money has been transferred, and the gift is enforceable; A, furthermore, cannot later demand the money back as his right. On the other hand, if A says, "I promise to give you $10,000 in one year," then this is a mere promise, what used to be called a nudum pactum in Roman law, and therefore is not properly enforceable. The receiver must take his chances that the donor will keep his promise. But if, on the contrary, A tells B: "I hereby agree to transfer $10,000 to you in one year's time," then this is a declared transfer of title at the future date, and should be enforceable. 
It should be emphasized that this is not mere word-play, much as it might seem so in particular cases. For the important question is always at stake: has title to alienable property been transferred, or has a mere promise been granted? In the former case, the agreement is enforceable because a failure to deliver the transferred property is theft; in the latter case, it is a mere promise which has not transferred title to property, a promise that may be morally binding, but cannot be legally binding on the promissor. Hobbes was not engaging in mere word-play when he correctly wrote: 
Words alone, if they be of the time to come, and contain a bare promise [nudum pactum], are an insufficient sign of a free gift and therefore not obligatory. For if they be of the time to come, as tomorrow I will give, they are a sign I have not yet given, and consequently that my right is not transferred, but remaineth till I transfer it by some other act. But if the words be of the time present, or past, as, I have given, or do give to be delivered tomorrow, then this is my tomorrow's right given away today. ...There is a great difference in the signification of [the] words ...between I will that this be thine tomorrow, and I will give it thee tomorrow: for the word I will, in the former manner of speech signifies a promise of an act of the will present; but in the latter, it signifies a promise of an act of the will to come: and therefore the former words, being of the present, transfer a future right; the latter, that be of the future, transfer nothing. 
Let us now apply the contrasting theories to a pure gift agreement, rather than an exchange. A grandfather promises to pay his grandson's way through college; after a year or two in college, the grandfather, whether from suffering business reverses or from any other reason, decides to revoke his promise. On the basis of the promise, the grandson has incurred various expenses in arranging his college career and foregoing other employment. Should the grandson be able to enforce the grandfather's promise through legal action? 
In our title-transfer theory, the grandson has no right whatever to the grandfather's property, since the grandfather retained title to his money throughout. A mere naked promise can confer no title, and neither can any subjective expectations of the promisee. The costs incurred by the grandson are properly his own entrepreneurial risk. On the other hand, of course, if the grandfather transferred title, then it would be the grandson's property and he should be able to sue for his property. Such a transfer would have occurred if the grandfather had written: "I hereby transfer $8000 to you (the grandson)," or had written: "I hereby transfer $2000 to you at each of the following dates: 1 September 1975, 1 September 1976, etc." 
On the other hand, on the expectations model of contracts, there are two possible variants: either that the grandson would have a binding legal claim on the grandfather because of the mere promise, or that the grandson would have a claim on the expenses that he had incurred on the expectation of the promise being fulfilled. 
Suppose, however, that the original statement of the grandfather was not a simple promise, but a conditional exchange: e.g., that the grandfather agreed to pay the grandson's full college tuition provided that the grandson made weekly progress reports to the grandfather. In that case, according to our title transfer theory, the grandfather has made a conditional transfer of title: agreeing to transfer title in the future provided that the grandson performed certain services. If the grandson in fact performed such services, and continues to perform them, then the tuition payment is his property and he should be legally entitled to collect from the grandfather. 
Under our proposed theory would fraud be actionable at law? Yes, because fraud is failure to fulfill a voluntarily agreed upon transfer of property, and is therefore implicit theft. If, for example, A sells to B a package which A says contains a radio, and it contains only a pile of scrap metal, then A has taken B's money and not fulfilled the agreed upon conditions for such a transfer - the delivery of a radio. A has therefore stolen B's property. The same applies to a failure to fulfill any product warranty. If, for example, the seller asserts that the contents of a certain package include 5 ounces of product X, and they do not do so, then the seller has taken money without fulfilling the terms of the contract; he has in effect stolen the buyer's money. Once again, warranties of products would be legally enforceable, not because they are "promises," but because they describe one of the entities of the agreed-upon contract. If the entity is not as the seller describes, then fraud and hence implicit theft have taken place. 
Would bankruptcy laws be permissible in a libertarian legal system? Clearly not, for the bankruptcy laws compel the discharge of a debtor's voluntarily contracted debts, and thereby invade the property rights of the creditors. The debtor who refuses to pay his debt has stolen the property of the creditor. If the debtor is able to pay but conceals his assets, then his clear act of theft is compounded by fraud. But even if the defaulting debtor is not able to pay, he has still stolen the property of the creditor by not making his agreed-upon delivery of the creditor's property. The function of the legal system should then be to enforce payment upon the debt - or through, e.g., forced attachment of the debtor's future income for the debt plus the damages and interest on the continuing debt. Bankruptcy laws, which discharge the debt in defiance of the property rights of the creditor, virtually confer a license to steal upon the debtor. In the pre-modern era, the defaulting debtor was generally treated as a thief and forced to pay as he acquired income. Doubtless the penalty of imprisonment went far beyond proportional punishment and hence was excessive, but at least the old legal ways placed responsibility where it belonged: on the debtor to fulfill his contractual obligations and to make the transfer of the property owed to the creditor-owner. One historian of American bankruptcy law, though a supporter of these laws, has conceded that they trample on the property rights of the creditors: 
If the laws of bankruptcies were based on the legal rights of individuals, there would be no warrant for the discharge of debtors from the payment of their debts as long as they lived, or their estates would continue to exist. ...The creditor has rights which must not be violated even if adversity be the cause of the bankrupt's condition. His claims are part of his property. 
In defense of the bankruptcy laws, the utilitarian economist might reply that, once these laws are on the books, the creditor knows what may happen to him, that he compensates for that extra risk with a higher interest rate, and that therefore actions under the bankruptcy law should not be regarded as expropriation of the creditor's property. It is true that the creditor knows the laws in advance, and that he will charge a higher interest rate to compensate for the resulting risk. The "therefore," however, does not at all follow. Regardless of foreknowledge or forewarning, bankruptcy laws are still violations and, hence, expropriations of the property rights of the creditors. There are all sorts of situations on the market where prospective victims may be able to maneuver so as to minimize the harm to themselves of institutionalized theft. The theft is no more moral or legitimate because of such praiseworthy maneuvering. 
Moreover, the same utilitarian argument could be used about such crimes as mugging or burglary. Instead of deploring crime against store-keepers in certain sections of a city, we might then argue (as utilitarian economists) as follows: after all, the storekeepers knew what they were doing in advance. Before they opened the store, they knew of the higher crime rate at that location and were therefore able to adjust their insurance and their business practices accordingly. Should we say, therefore, that robbery of storekeepers is not to be deplored or even outlawed? 
In short, crime is crime, and invasions of property are invasions of property. Why should those farseeing property owners who took some advance measures to alleviate the effects of prospective crime be penalized by being deprived of a legal defense of their justly owned property? Why should the law penalize the virtue of forethought? 
The problem of defaulting debtors may be met in another way: the creditor, taking account of the debtor's honest attempts to pay, may voluntarily decide to forgive part or all of the debt. Here it is important to stress that in a libertarian system which defends property rights, each creditor may forgive only his own debt, may only surrender his own property claims to the debtor. There can then be no legal situation in which a majority of creditors compel a minority to "forgive" their own claims. 
Voluntary forgiveness of a debt may occur after the fact of default, or it may be incorporated into the original debt contract. In that case, A could lend B $1000 now, in exchange for $1000 a year from now, provided that, given certain conditions of unavoidable insolvency, A would forgive B part or all of that debt. Presumably, A would charge a higher interest rate to compensate for the additional risk of failure. But the important point is that in these legitimate situations of forgiveness, the discharge of debt has been voluntarily agreed upon, either in the original agreement or after default, by the individual creditor. 
Voluntary forgiveness takes on the legal-philosophical status of a gift by the creditor to the debtor. Oddly enough, while title-transfer theorists see such a gift as a perfectly legitimate and valid agreement to transfer title to money from a creditor to a debtor, current legal doctrine has questioned the validity of such an agreement to forgive as a binding contract. For, in current theory, a binding contract must be a promise exchanged for a "consideration," and in the case of forgiveness, the creditor receives no consideration in exchange. But the title-transfer principle sees no problems with forgiveness: "The creditor's act by way of releasing a claim is of the same kind as an ordinary act of transfer. In either case the act is simply the manifested consent of the owner of the right." 
Another important point: in our title-transfer model, a person should be able to sell not only the full title of ownership to property, but also part of that property, retaining the rest for himself or others to whom he grants or sells that part of the title. Thus, as we have seen above, common-law copyright is justified as the author or publisher selling all rights to his property except the right to resell it. Similarly valid and enforceable would be restrictive covenants to property in which, for example, a developer sells all the rights to a house and land to a purchaser, except for the right to build a house over a certain height or of other than a certain design. The only proviso is that there must, at every time, be some existing owner or owners of all the rights to any given property. In the case of a restrictive covenant, for example, there must be some owners of the reserved right to build a tall building; if not the developer himself, then someone who has bought or received this right. If the reserved right has been abandoned, and no existing person possesses it, then the owner of the house may be considered to have "homesteaded" this right, and can then go ahead and build the tall building. Covenants and other restrictions, in short, cannot simply "run with the property" forever, thereby overriding the wishes of all living owners of that property.
This proviso rules out entail as an enforceable right. Under entail, a property owner could bequeath this land to his sons and grandsons, with the proviso that no future owner could sell the land outside the family (a deed typical of feudalism). But this would mean that the living owners could not sell the property; they would be governed by the dead hand of the past. But all rights to any property must be in the hands of living, existing persons. It might be considered a moral requirement for the descendants to keep the land in the family, but it cannot properly be considered a legal obligation. Property rights must only be accorded to and can only be enjoyed by the living.
There is at least one case in which the "promised expectations" model is in grave internal contradiction, depending upon whether one stresses the "promise" or the "expectations" part of the theory. This is the legal problem of whether "purchase breaks hire." Thus, suppose that Smith owns a tract of land; he leases the land for five years to Jones. Smith, however, now sells the land to Robinson. Is Robinson bound to obey the terms of the lease, or can he oust Jones immediately? On the promise theory, only Smith made the promise to lease the land; Robinson did not so promise, and therefore Robinson is not bound to respect the lease. On the expectations theory the lease agreement generated expectations in Jones that the land would be his for five years. Therefore, on the former grounds, purchase breaks hire, whereas it cannot do so on the expectations model. The title-transfer theory, however, avoids this problem. On our model, Jones, the leaseholder, 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 cannot break the lease (unless, of course, the breaking of hire under such conditions was expressly included as a provision in the lease).
There is one vitally important political implication of our title transfer theory, as against the promise theory of valid and enforceable contracts. It should be clear that the title-transfer theory immediately tosses out of court all variants of the "social contract" theory as a justification for the State. Setting aside the historical problem of whether such a social contract ever took place, it should be evident that the social contract, whether it be the Hobbesian surrender of all one's rights, the Lockean surrender of the right of self-defense, or any other, was a mere promise of future behavior (future will) and in no way surrendered title to alienable property. Certainly no past promise can bind later generations, let alone the actual maker of the promise. 
The current law of contracts is an inchoate mixture of the title-transfer and the promise expectations approaches, with the expectations model predominating under the influence of nineteenth- and twentieth- century legal positivism and pragmatism. A libertarian, natural-rights, property-rights theory must therefore reconstitute contract law on the proper title-transfer basis.

20. Lifeboat Situations. 
It is often contended that the existence of extreme, or "lifeboat," situations disproves any theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever. It is claimed that since any theory of individual rights seems to break down or works unsatisfactorily in such fortunately rare situations, therefore there can be no concept of inviolable rights at all. In a typical lifeboat situation, there are, let us say, eight places in a lifeboat putting out from a sinking ship, and there are more than eight people wishing to be saved. Who then is to decide who should be saved and who should die? And what then happens to the right of self-ownership, or, as some people phrase it, the "right to life"? (The "right to life" is fallacious phraseology, since it could imply that A's "right to life" can justly involve an infringement on the life and property of someone else, i.e., on B's "right to life" and its logical extensions . A "right to self-ownership" of both A and B avoids such confusions.) In the first place, a lifeboat situation is hardly a valid test of a theory of rights, or of any moral theory whatsoever. Problems of a moral theory in such an extreme situation do not invalidate a theory for normal situations. In any sphere of moral theory, we are trying to frame an ethic for man, based on his nature and the nature of the world - and this precisely means for normal nature, for the way life usually is, and not for rare and abnormal situations. It is a wise maxim of the law, for precisely this reason, that "hard cases make bad law." We are trying to frame an ethic for the way men generally live in the world; we are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered. 
Let us take an example, to illustrate our point, outside the sphere of property rights or rights in general, and within the sphere of ordinary ethical values. Most people would concede the principle that "it is ethical for a parent to save his child from drowning." But, then, our lifeboat skeptic could arise and hurl this challenge: "Aha, but suppose that two of your children are drowning and you can save only one. Which child would you choose? And doesn't the fact that you would have to let one child die negate the very moral principle that you should save your drowning child?" I doubt whether many ethicists would throw over the moral desirability or principle of saving one's child because it could not be fully applied in such a "lifeboat" situation. Yet why should the lifeboat case be different in the sphere of rights? 
In a lifeboat situation, indeed, we apparently have a war of all against all, and there seems at first to be no way to apply our theory of self-ownership or of property rights. But, in the example cited, the reason is because the property right has so far been ill-defined. For the vital question here is: who owns the lifeboat? If the owner of the boat or his representative (e.g. the captain of the ship) has died in the wreck, and if he has not laid down known rules in advance of the wreck for allocation of seats in such a crisis, then the lifeboat may be considered - at least temporarily for the emergency - abandoned and therefore unowned. At this point, our rules for unowned property come into play: namely, that unowned re-sources become the property of the first people possessing them. In short, the first eight people to reach the boat are, in our theory, the proper "owners" and users of the boat. Anyone who throws them out of the boat then commits an act of aggression in violating the property right of the "homesteader" he throws out of the boat. After he returns to shore, then, the aggressor becomes liable for prosecution for his act of violation of property right (as well,
perhaps, for murder of the person he ejected from the boat). 
Doesn't this homesteading principle sanction a mad scramble for the seats in the lifeboat? Scramble perhaps; but it should be pointed out that the scramble must not, of course, be violent, since any physical force used against another to keep him from homesteading is an act of criminal assault against him, and aggression may not be used to establish a homestead right (just as one would-be homesteader may not use force to prevent someone else from getting to a piece of land first).
To those who believe that such a homesteading principle is unduly harsh, we may reply (a) that we are already in an intolerably harsh and fortunately rare situation where no solution is going to be humane or comforting; and (b) that any other principle of allocation would be truly intolerable. The time-honored principle of "women and children first" is surely morally intolerable; by what principle of justice do men have inferior rights to life or self-ownership than women or children? The same is true of the view that the "superior" minds should be saved at the expense of the "inferior"; aside from the staggering objection of who is going to decide on who is superior or inferior, and by what criterion, this view implies that the "superior" have a right to live at the expense of the "inferior," and this violates any concept of equal rights and renders any ethic for mankind impossible. 
A far clearer outcome of the lifeboat case occurs where the owner or his representative still survives or has laid down rules for allocation in advance. For, in that case, our theory states that the right to allocate spaces in the lifeboat belongs to the owner of the boat. He may choose to carry out that allocation in various ways: whether by first come-first served, women and children first, or whatever. But though we may disagree with the morality of his criteria, we must concede his right to make the allocation in whatever way he wishes. Again, any forcible interference with such owner's allocation, e.g., by throwing people out of their allocated spaces, is at the very least an act of invasion of property right for which the aggressor may be repelled on the spot, and for which the aggressor would later be liable for prosecution. Our theory of absolute property right is therefore the most satisfactory -or, at the very minimum, the least un-satisfactory way out of the tragic lifeboat example. 
An even starker version of the "lifeboat" case - and one where there is no question of someone's prior ownership of the lifeboat - occurs when (to cite an example mentioned by Professor Eric Mack) two shipwrecked men are battling over a plank that can only support one. Does the concept of aggression and property right apply even here? Yes, for again, our homestead principle of property right comes into play: i.e., the first person who reaches the plank "owns" it for the occasion, and the second person throwing him off is at the very least a violator of the former's property and perhaps also liable for prosecution for a n act of murder. Again, neither of the persons may use force against the other in preventing the latter from reaching the plank, for this would be an act of physical aggression against his person. 
It may well be objected to our theory as follows: that a theory of property rights or even of self-ownership is derivable from the conditions by which man survives and flourishes in this world, and that therefore in this kind of extreme situation, where a man is faced with the choice of either saving himself or violating the property rights of the Lifeboat owner (or, in the above example, of the "homesteader" in the boat), it is then ridiculous to expect him to surrender his life on behalf of the abstract principle of property rights. Because of this kind of consideration, many libertarians who otherwise believe in property rights gravely weaken them on behalf of the "contextualist" contention that, given a choice between his life and aggressing against someone else's property or even life, it is moral for him to commit the aggression and that therefore in such a situation, these property rights cease to exist. The error here on the part of the "contextualist" libertarians is to confuse the question of the moral course of action for the person in such a tragic situation with the totally separate question of whether or not his seizing of lifeboat or plank space by force constitutes an invasion of someone else's property right. For we are not, in constructing a theory of liberty and property, i.e., a "political" ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such "political ethical" questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for "Smith" - the fellow excluded by the owner from the plank or the lifeboat - to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics. 
The crucial point is that even if the contextualist libertarian may say that, given the tragic context, Smith should throw someone else out of the lifeboat to save his own life, he is still committing, at the very least, invasion of property rights, and probably also murder of the person thrown out. So that even if one says that he should try to save his life by forcibly grabbing a seat in the lifeboat, he is still, in our view, liable to prosecution as a criminal invader of property right, and perhaps as a murderer as well. After he is convicted, it would be the right of the lifeboat owner or the heir of the person tossed out to forgive Smith, to pardon him because of the unusual circumstances; but it would also be their right not to pardon and to proceed with the full force of their legal right to punish. Once again, we are concerned in this theory with the rights of the case, not with whether or not a person chooses voluntarily to exercise his rights. In our view, the property owner or the heir of the killed would have a right to prosecute and to exact proper punishment upon the aggressor. The fallacy of the contextualists is to confuse considerations of individual, personal morality (what should Smith do?) with the question of the rights of the case. The right of property continues, then, to be absolute, even in the tragic lifeboat situation.
Furthermore, if the lifeboat owner, Jones, is being aggressed against by Smith, and has the right to prosecute Smith later on, he therefore also has the right to use force to repel Smith's aggression on the spot. Should Smith try to use force to pre-empt a spot on the lifeboat, Jones, or his hired defense agent, certainly has the right to use physical force to repel Smith's act of invasion. 
To sum up the application of our theory to extreme situations: if a man aggresses against another's person or property to save his own life, he may or may not be acting morally in so doing. That is none of our particular concern in this work. Regardless of whether his action is moral or immoral, by any criterion, he is still a criminal aggressor against the property of another, and the victim is within his right to repel that aggression by force, and to prosecute the aggressor afterward for his crime. 

21. The "Rights" of Animals. 
It has lately become a growing fashion to extend the concept of rights from human beings to animals, and to assert that since animals have the full rights of humans, it is therefore impermissible -i.e., that no man has the right to kill or eat them. 
There are, of course, many difficulties with this position, including arriving at some criterion of which animals or living beings to include in the sphere of rights and which to leave out. (There are not many theorists, for example, who would go so far as Albert Schweitzer and deny the right of anyone to step on a cockroach. And, if the theory were extended further from conscious living beings to all living beings, such as bacteria or plants, the human race would rather quickly die out.)
But the fundamental flaw in the theory of animal rights is more basic and far-reaching. For the assertion of human rights is not properly a simple emotive one; individuals possess rights not because we "feel" that they should, but because of a rational inquiry into the nature of man and the universe. In short, man has rights because they are natural rights. They are grounded in the nature of man: the individual man's capacity for conscious choice, the necessity for him to use his mind and energy to adopt goals and values, to find out about the world, to pursue his ends in order to survive and prosper, his capacity and need to communicate and interact with other human beings and to participate in the division of labor. In short, man is a rational and social animal. No other animals or beings possess this ability to reason, to make conscious choices, to transform their environment in order to prosper, or to collaborate consciously in society and the division of labor.
Thus, while natural rights, as we have been emphasizing, are absolute, there is one sense in which they are relative: they are relative to the species man. A rights-ethic for mankind is precisely that: for all men, regardless of race, creed, color or sex, but for the species man alone. The Biblical story was insightful to the effect that man was "given" or, - in natural law, we may say "has" -dominion over all the species of the earth. Natural law is necessarily species-bound. 
That the concept of a species ethic is part of the nature of the world may be seen, moreover, by contemplating the activities of other species in nature. It is more than a jest to point out that animals, after all, don't respect the "rights" of other animals; it is the condition of the world, and of all natural species, that they live by eating other species. Inter-species survival is a matter of tooth and claw. It would surely be absurd to say that the wolf is "evil" because he exists by devouring and "aggressing against" lambs, chickens, etc. The wolf is not an evil being who "aggresses against" other species; he is simply following the natural law of his own survival. Similarly for man. It is just as absurd to say that men "aggress against" cows and wolves as to say that wolves "aggress against" sheep. If, furthermore, a wolf attacks a man and the man kills him, it would be absurd to say either that the wolf was an "evil aggressor" or that the wolf was being "punished" for his "crime." And yet such would be the implications of extending a natural-rights ethic to animals. Any concept of rights, of criminality, of aggression, can only apply to actions of one man or group of men against other human beings. 
What of the "Martian" problem? If we should ever discover and make contact with beings from other planets, could they be said to have the rights of human beings? It would depend on their nature. If our hypothetical "Martians" were like human beings -conscious, rational, able to communicate with us and participate in the division of labor, then presumably they too would possess the rights now confined to "earthbound" humans. But suppose, on the other hand, that the Martians also had the characteristics, the nature, of the legendary vampire, and could only exist by feeding on human blood. In that case, regardless of their intelligence, the Martians would be our deadly enemy and we could not consider that they were entitled to the rights of humanity. Deadly enemy, again, not because they were wicked aggressors, but because of the needs and requirements of their nature, which would clash ineluctably with ours. 
There is, in fact, rough justice in the common quip that "we will recognize the rights of animals whenever they petition for them." The fact that animals can obviously not petition for their "rights" is part of their nature, and part of the reason why they are clearly not equivalent to, and do not possess the rights of, human beings. And if it be protested that babies can't petition either, the reply of course is that babies are future human adults, whereas animals obviously are not. 
