Towards the end of last year, I exchanged, in a brief series of essays, some thoughts on free trade with another author, which touched on a wider discussion on the concept of liberty and the viability of political strategies. After I signed off, other authors interpreted or continued elements of the discussion between themselves, with the combined contributions collected and published here.

A theme from that discussion on which I would like to elaborate is not where libertarian rights come from or are otherwise justified; rather, it is the conceptual identity of liberty, and whether it can be said to have any meaning in a situation where its limits are designated by some person who happens to be in an enforced position of authority.

My answer, as shall be seen below, is firmly in the negative – for such authority is and of itself an infringement on liberty that makes it indistinguishable from its negation.

With the exception of one issue I shall address at the very end, this is a fresh contribution which will make no reference to the previous discussion; it is, moreover, quite comprehensive, reaching its conclusion from the bottom up through discussing matters of ethics, conflicts, rights, political settlements, and what this means for libertarian strategy going forward.

Note: the terminology that follows is neither necessarily agreed nor used consistently in moral and political philosophy. The taxonomy as I use it – especially when I discuss “rights” – is, therefore, the one I think makes the most sense.

1. The Need for Ethics

The simplest way to explain our need for ethics is this: every human action comes at a cost. Whatever is gained through action is achieved only by sacrificing something else. That immediately raises the question: is what has been gained, in some relevant sense, “better” than what has been given up?

These costs may be trivial or significant, short-term or long-term. Choosing to go to the cinema tonight means sacrificing bowling tonight – hardly a moral drama. Neglecting one’s health through sustained consumption of junk food, by contrast, may deliver immediate pleasure while foreclosing entire ranges of future action once the body begins to fail.

If norms were like physical laws, ethics would be unnecessary. If the validity of a norm depended on its enforcement by a physical barrier that rendered certain actions impossible, then those actions would never enter the ethical realm at all; they would simply be things we cannot do.

A science of ethics is therefore possible precisely because human action occupies a different domain from the laws of nature. Science is descriptive; ethics is normative. The natural sciences ask: what effect is caused by this phenomenon? The ethicist asks: which of many possible effects should I bring about through my action? To conflate the two is a category error.

Nevertheless, if norms had no causal force whatsoever, ethics would be little more than a game or pastime. Norms are therefore causal – but not in the manner of physical phenomena. Their function is to influence our thinking, shaping our choices by directing us toward certain ends rather than others.

Through action, an individual reveals that he values one end more highly than another. Ethics, however, seeks to intervene in this process. It attempts to replace what a person may currently rank highest with something else. In other words, it proposes how one’s preference rankings ought to be ordered. I am free to choose – but how should I choose? If I am not physically constrained, am I nevertheless morally, logically, coherently, or reasonably bound to act in some ways and not others?

Without such deliberation, we would drift endlessly between momentary impulses and incentives – a condition that could, quite literally, prove fatal if left unchecked.

Although ethics exert no mechanical force, the internal psychological burden of confronting ethical weight may feel as heavy as any physical imposition – sometimes heavier. A man prevented from committing an act of murder by physical barriers may still look for a way around them; a man governed by conscience will not.

This reordering of preference rankings can also be reinforced socially. If you breach a norm, others may decide that you are someone with whom they would rather not deal, resulting in less favourable treatment relative to those who do abide by it.

Nevertheless, normative – as opposed to merely descriptive – force exists independently of whether we choose to acknowledge or feel it. I am free to ignore an ethic, but doing so does not alter the fact that I have acted immorally, illogically, incoherently, or unreasonably in doing so. In other words, the validity of a norm does not depend on whether people choose to follow it – a stance which would, in any case, beg the question.

If each human were endowed with perfect knowledge and wisdom from birth, there would be no need for ethics. We would always choose what was “best” without deliberation. Lacking these qualities, however, each of us must discover and learn ethics from the very first moment we are told by a parent that something we did was naughty.

Over time, certain basic ethical principles may crystallise into accumulated social wisdom. Even so, the difficulty of ethical deliberation ensures persistent disagreement – not only over which ends are worth pursuing, but also over how that question should be decided in the first place. Yet to claim that norms arise merely from existing choices, preferences or desires is also to beg the question, since it assumes that the very issues under dispute have already been resolved:

Which choices should one make?
Which ends should one regard as most preferable?
Among the many desires one might have, which should one attempt to fulfil?

I may desire a Ferrari, a ten-acre estate, and a private jet. But given my resources – or lack of them – merely listing these desires tells me nothing about which, if any, I should actually pursue.

However they describe themselves, and whichever branch of the philosophy they occupy, all ethical systems exist because of our capacity to choose – our ability to substitute a less preferable action for a better one. Ethics therefore does not concern utopian or whimsical speculation about how things “should be” in the abstract, nor are the conclusions of other evaluative branches of philosophy (such as aesthetics) decisive in determining ethical outcomes. However great and glorious it may be, if a posited state of affairs cannot, even in principle, be realised, it lies outside the realm of ethics altogether.

2. Ethics in Human Society

For Robinson Crusoe alone on his island, ethics would concern only actions whose costs are borne entirely by himself. Interpersonal ethics, however, introduces a new problem: the possibility of forcing the costs of one’s actions onto others.

One particular form of this problem is central to political philosophy: physical conflicts over a person’s body or over external objects that person has already acquired.

The underlying logic is simple. Suppose I have taken possession of an apple I intend to eat. You also want the apple, so you forcibly take it for yourself. The cost of your action to me is that I can no longer satisfy my hunger. That which benefits you does so by offloading a cost – a sacrifice – onto me.

The same reasoning applies to cases of murder, theft, assault, and the like. Whatever objective you pursue in committing such acts, you achieve it only by forcing another person to bear a cost – sometimes a very grave one.

Whether one should choose to take, or otherwise invade, the person or goods claimed by another is therefore a moral question. But the implications run deeper than this alone.

When the apple is in my possession, ethics concerns how I ought to use it. I may eat it myself, give it away, or plant it to grow an apple tree. Whatever I choose, the decision is mine. I exercise agency over the apple, and ethics addresses how that agency should be directed.

When you take the apple from me by force, however, you strip me of that agency. You transfer to yourself the exclusive ability to act in relation to the apple. Once it is in your possession, you may decide to give it away, to eat it, or to plant it – and those subsequent actions may even be morally admirable in isolation. But none of that alters the essential fact: you have forcibly substituted your judgment for mine. In doing so, you reduce me from a choosing agent to a passive object – a means to your ends rather than an end in myself.

Given that two people cannot simultaneously act with respect to the same object, persistent disagreement over what is moral, and over how moral judgments ought to be reached, cannot be resolved by personal ethics alone. One person’s acting “morally” with respect to the apple necessarily excludes the other from doing so. No theory of moral conduct can settle this conflict without presupposing an answer to a logically prior question: who has the authority to choose? When the identity of the decision-maker itself is contested, the question of how one ought to act must first establish who is entitled to act at all.

This, rather than mere scrambling for one another’s goods, is the true source of the nightmarish “war of all against all”. Even where individuals are striving to act morally, disagreement over what morality requires will itself generate conflict. The fundamental problem is therefore not virtue, but preliminary exclusion and control.

In confronting conflicts arising from the forcible invasion of another person’s body or accumulated property, humans have, therefore, found it insufficient to say merely: “it is immoral for you to take from others.” Instead, social order has coalesced around a stronger and more precise solution in the form of a particular kind of norm: a right.

A right is the exclusive allocation of agency over a given resource to a particular person, or to a specific group of persons prepared to act in concert as a single agent. That allocation must be exclusive. One agency must have control over the resource, while all others must yield. If this were not so – if everyone could simultaneously use the same resource to pursue their ends – then it would not be scarce, and no conflict would arise in the first place. We do not assert rights over breathable air for precisely this reason: its supply is sufficient to be shared without interference.

Other resources, however, require exclusion if they are to be usable at all. Where such exclusion is absent, the resource becomes praxeologically useless. If you and I both claim a car, we cannot resolve the conflict by sawing it in half. One of us must control it, and the other must not. Equal control over everything would mean that no one could actually act – which is, incidentally, the simplest refutation of egalitarian demands for equal shares of all goods.

Even arrangements that fall short of full ownership, such as rental or leasehold agreements, recognise this necessity. They confer exclusive control for a defined period, because even time-shared use cannot overcome the physical fact that you and I cannot drive the same car at the same time.

Rights go further, however, by conferring upon their holder the legitimacy of physically repelling any invasion of the property in question – or, after the fact, of physically seeking redress. Without this element, rights would be empty. They cannot preserve one’s agency over a resource unless they entail the authority to exclude attempts to override that condition. Physical enforcement is therefore not an optional add-on to rights; it is built into the concept itself.[1]

However they are framed, rights must take effect in this way. Consider, for example, a supposed “right to not be offended”. If such a right were genuine, it would entitle me to use force to prevent you from using your mouth and vocal cords in ways that offend me. Even rights described in abstract or intangible terms must therefore resolve, at some point, into exclusive control over physical bodies or objects in at least some regard. There is no escaping this implication.

The libertarian conception of rights is straightforward, although I have explained it in detail here. You have ownership rights over your own body, and over any external property you have either appropriated from nature or acquired through voluntary exchange. “Lesser” rights – such as leases, easements, and other contractual arrangements – are derived in a similar manner. Your liberty is breached whenever someone invades property that meets these criteria.

If two people can resolve a conflict between themselves, that is the end of the matter. If they cannot, however, the question of rights necessarily becomes a public or institutional affair. Moral reasoning concerns conflicts within a single person; rights arise only where there are conflicts between persons. Where voluntary agreement fails, there are only two remaining options: physical conflict – which amounts to a renunciation of ethical resolution altogether – or recourse to the adjudication of a third party.

That act of adjudication is the origin of law as an institution. Contrary to common assumption, law is not a fundamental source of rights assignment, for the very attempt to adjudicate and issue rulings must itself presuppose an underlying right to act in such a manner. Law is therefore not a substitute for political philosophy, but rather an expression of it – shaped and guided by prior principles concerning the allocation of rights. As we shall see later when contrasting different legal systems, those principles can fundamentally alter the nature, structure, and purpose of the law.[2]

Law’s proper role, therefore, is the translation of underlying principles of rights into a coherent and publicly intelligible body of norms, adapted to time, place, custom, and culture. If we possessed perfect knowledge of facts, intentions, causal chains, and socially acceptable boundaries, much of what we think of as legal procedure would be unnecessary. Once the relevant principles of rights determination were applied, the correct outcome would already be known. Law would still exist as a framework of rights and boundaries, but courts, trials, and procedural machinery would be largely redundant. In practice, most legal reasoning is not concerned with defining abstract concepts, but with coping with epistemic limitation. So-called “hard cases” typically arise not because we lack a conceptual account of rights violations – such as aggression – but because borderline disputes can be resolved only by reference to diffuse, socially embedded expectations about acceptable interference. How much light constitutes “excessive” pollution? How much sound is “too much” noise? Such questions cannot be answered a priori.

For similar reasons, legal systems rely on the presumption of innocence, place the burden of proof on the plaintiff, and impose strict rules governing the handling and presentation of evidence. Absent such procedural norms, our ability to adjudicate disputes objectively would be severely diminished. But these rules are not moral axioms. They are best understood as error-minimisation strategies adopted under a starting condition of ignorance.[3] Procedural rules take on the appearance of fundamental status in a statist legal system because they become entangled with the broader question of the rights of the individual vis-à-vis the state, and with the need to restrain the state’s uniquely dangerous power.

Overcoming these epistemic difficulties is necessary for at least two reasons.

First, rights must function as publicly visible boundaries. Their role is not merely retrospective – resolving past conflicts – but prospective, in that people must know in advance where the line is drawn if future conflicts are to be avoided.

Indeed, it is worth recalling that the overwhelming majority of legal relationships originate not out of antagonism (such as crimes or torts) but consensually, as they do through contracts. Disputes in this domain typically arise from a breakdown in cooperation where both parties feel genuinely wronged, believe themselves to be in the right (whether on the facts or the law), and, nevertheless, wish to reach a peaceful resolution. Clear, publicly intelligible rules are therefore essential if individuals are to order their future affairs so as to minimise such conflicts.

Second, individuals often lack the practical ability to enforce their rights unaided. And insofar as it is in everyone’s interest that breaches of rights are resolved and deterred, coordinated action by multiple parties is required to ensure that legal responses are applied accurately and proportionately. A bank, for example, may need to freeze a wrongdoer’s assets in order to facilitate compensation. But no reputable institution will act on the mere assertion of a claimant. It will require the judgment of one or more recognised adjudicators to establish liability.[4]

A further complication arising from the need for institutional arrangements is that the term “right” can be used in either a normative or a descriptive sense. Used normatively, to say that you have a right to something is to say that you ought to have exclusive control and possession of a given piece of property. Used descriptively, by contrast, it means that the legitimacy of this control and possession is recognised and enforced by existing institutions. It is therefore perfectly consistent for a libertarian to say, for example, “you have a right to freedom of speech” in the normative sense, while acknowledging that, in a given regime, institutions may refuse to recognise that right or may actively violate it.

Whether we are speaking normatively or descriptively, however, the existence, as opposed to the effectiveness, of a right does not depend on its practical enforceability. Suppose someone steals my car and I am unable to recover it. That outcome may be due to institutions refusing to recognise the validity of my claim, or to their inability to identify or apprehend the thief. Such circumstances – whether temporary or permanent – affect only my ability to vindicate the right. They don’t change the fact that I am the rightful owner of the car.

A similar distinction applies in libertarian theory to what it means to live in a “free society”. If a private criminal steals your property, that individual has violated your liberty. But if this violation is institutionally recognised, and mechanisms exist to identify, punish, and deter such acts, then you remain free in the institutional sense. Private crime, viewed in the round, is a nuisance that any society must contend with from time to time, not a fundamental threat to liberty.

Contrast this with a situation in which the state may seize your property at any moment on its own authority. The fact that it has not yet done so, and is presently leaving you alone, does not mean that you are living freely. You are instead living under the shadow of a persistent and systematised threat. In political philosophy, liberty therefore refers to the institutional status of one’s rights, not to the contingent fact of whether they are currently being exercised or violated.

This brings us to an important distinction in ethics between what is legal and what is moral. The difference is straightforward. What is legal is what falls within your sphere of exclusion and control under a given system of rights allocation – that is, the set of actions over which you are the final decision-maker. What is moral is what you should choose to do from among all physically available options. Or, in short: what you may choose, as opposed to what you should choose.

Several conclusions follow from this.

First, legality entails neither moral endorsement nor moral condemnation of an individual’s actions. The legal question is not whether an action is good, but who is the final arbiter over the ends to which a given piece of property may be put. Saying “it’s my right” is therefore no defence of doing something bad. It is your right to jump off a cliff; that does not mean you should do so – only that the choice is yours.

Second, while the question of exclusion and control is itself an ethical one, illegality cannot enforce morality. Law can compel behaviour, but it cannot make an action moral. Moral action presupposes that an agent is free to choose; the purpose of illegality, by contrast, is precisely to remove that choice through force.

Consider, for instance, the claim that “smoking is immoral, therefore the state should ban it.” This is not, in fact, a moral prescription directed at the individual. It does not tell the citizen how he ought to act, but rather tells the state how it ought to legislate. Moral agency over the question of tobacco use is thereby transferred from the individual to the state. The citizen is no longer a choosing agent in this regard, but an object of policy.

One might respond that, given such a law, the citizen ought to obey it in the event the state either struggles or chooses not to enforce it. That may well be a coherent moral claim. But it is a different proposition from saying that the citizen ought not to smoke. The former concerns obedience to authority; the latter concerns the evaluation of the act itself.

As a theory of how individuals should choose to act, therefore, the attempt to enforce morality through law is incoherent. It replaces moral judgment with compulsion, and in doing so eliminates the very agency upon which moral evaluation depends.

Third, breaking a law is not necessarily immoral. This claim may sound less controversial in a statist environment, where rights allocations are often so distorted that breaching them can even appear positively moral – for example, denying the state its “right” to tax revenue used to fund unjust wars. But the point applies just as much within a libertarian conception of rights, even if it initially seems counter-intuitive.

Morality, it should be remembered, concerns choosing the best of the options available, and one may well find oneself in situations where all available options are bad. There is no reason to assume that respecting another person’s rights must always take absolute priority in such circumstances. If this should be doubted, suppose that out of two possible courses of action, A and B, each would involve breaching someone’s rights. In that case, morality would normally require choosing the option that causes the least serious harm. You may still owe compensation to the victim, but you have not acted immorally – you had no better alternative.[5]

Fourth – and conversely – it is not always moral to enforce one’s own rights. A right, it should be recalled, is breached only where physical contact or use occurs without consent. Morality, however, bears directly on when consent ought, or ought not, to be given.

This is obvious when consent is sought prospectively. If someone knocks on your door, clearly starving and seeking shelter, you are within your rights to turn them away. But the moral course of action may be to invite them in – in which case no rights violation occurs at all. The decisive issue for morality is not whether you may exclude, but whether you should.

Similar considerations arise, however, even where a person invades your property unavoidably and without the opportunity to ask permission – in other words, where they may already be considered an invader. This is typically the case in extreme “lifeboat” scenarios, which critics of libertarianism are fond of invoking in order to suggest that strict enforcement of rights in cases of minor intrusion would lead to the needless death of an unfortunate individual.

One of the most frequently cited examples is the so-called flagpole problem. A person falls from a high roof and, as he plummets, manages to grab hold of a flagpole protruding from the building. From there, he can climb – without the owner’s permission – through a nearby window into an adjacent apartment and save his life.

Caricatured applications of “libertarian rights” claim that either the dangling individual ought to let go and accept death rather than breach someone else’s rights, or that the apartment owner is within his rights to demand that he do so – and could even enforce that outcome.

The first possibility has already been dismissed: a breach of rights is not necessarily immoral. As for the second, even on a strictly legal analysis it does not follow. Self-defence permits only such force as is necessary to bring an invasive act to a close. It does not extend to demanding that a person fighting for his life fall to his death.

But let us assume, for the sake of argument, that the apartment owner could lawfully insist that the individual let go, just as he could turn away a starving person at his door. He could also choose not to. And that is precisely what morality would require: to assist the person in peril, or at least to consent retrospectively to the temporary invasion of his apartment.

The alternative – choosing cruelty where mercy is available at little cost – would almost certainly result in social ostracism. In a society without a welfare state, this would be no trivial sanction.

Not every conflict or dilemma demands legal, as opposed to social, regulation. The expectation that it must do so reflects a statist lens through which we have become accustomed to viewing all human interaction.

But in any case, it should be remembered that a rights allocation can change only who decides, not what happens. When critics claim in triumph that the flagpole case “refutes” libertarian rights, they overlook the fact that the only alternative is for the decision to be made by someone else – typically the state. And the state could just as easily decide that the sanctity of the apartment owner’s home takes precedence over the plight of the dangling victim.

With that said, one would not expect deep or systematic incoherence between law and morality. Rights allocations are themselves norms: they assert that one person’s decision-making authority over that piece of property should take precedence over another’s. Overriding such authority should therefore require genuinely pressing circumstances.

On the libertarian account, a breach of rights always reduces to some form of killing, assault, theft, or the destruction or damage of property. These prohibitions are not arbitrary theoretical constructs, but reflect norms so fundamental to the functioning of human society that they appear, in one form or another, across moral and religious traditions – from the Ten Commandments to countless other ethical systems. Once the fog of collectivist methodology is cleared away, and we recognise that all such acts occur between concrete individuals, it becomes apparent why there are relatively few real-world cases in which the moral imperative to avoid them is outweighed by competing considerations.

It is only because rights allocations under modern governments have become so detached from morality – and are often themselves immoral – that we are forced to seriously entertain the question of whether there exists a “moral obligation to obey the law” at all.

3. Imposed or Agreed Settlements

Once we understand that rights exist to determine who may choose under conditions of conflict, the decisive question becomes how such conflicts are resolved in practice. In other words: on what basis does a system of law and adjudication arise?

There are only two possibilities. Either such a system emerges through agreement, or some individuals impose their preferred system on others.

In the former case, adjudication is not an exercise of authority over individuals, but a service they choose to employ. Parties to a dispute voluntarily submit their conflict to third-party arbiters whose judgments they expect to be fair, competent, and broadly acceptable. No adjudicator enjoys a monopoly over justice, nor can any impose his jurisprudence on others. Instead, reputations emerge, standards coalesce, and legal principles stabilise through repeated use – much as people come to recognise some bakers as producing better bread than others, without anyone being compelled to buy from them. Enforcement of any judgment against an absconding or uncooperative defendant, similarly, is a voluntary service undertaken by those willing to accept the rulings of certain adjudicators.

Crucially, such a system does not “invent” or otherwise discover libertarian rights through adjudication; it presupposes them. The genesis of law resting in the voluntary selection or rejection of adjudicators already assumes that individuals are self-owners with the authority to decide how disputes involving their person or property are to be handled. Agreement on legal procedure therefore cannot be the source of rights; it must rest on rights that already exist.

Contrary, then, to the claims of legal positivism, the validity of law and legal principles in a free society is not conditional upon their issuer or enforcer. Just as scientific propositions are neither true nor false because a particular scientist or laboratory has asserted them, law is not valid because it is dispensed by a particular adjudicator. The causal relationship runs in the opposite direction: a person is regarded as a valid adjudicator because he practises valid law – exactly as it would be in any other endeavour. Any adjudicator who purported to “discover” a rule declaring that all competing courts should be abolished, or that only his judgments constituted valid law for the community, would rightly be laughed out of his own courtroom. Adjudication is therefore limited to the application, clarification, and refinement of pre-existing rights in concrete cases – not their creation ex nihilo.[6]

Only this kind of legal order is compatible with liberty as a conceptual condition rather than a contingent permission. Each individual remains a de jure free agent whose authority over his person and property is not granted by law, but recognised by it. Law, in this sense, is not a command issued downward by a sovereign, but an emergent framework for peacefully resolving conflicts among equals.

The second option is fundamentally different and amounts to the forced monopolisation of law and adjudication. Under such a system, a single person or institution claims exclusive authority to determine which claims to persons and property prevail in cases of conflict. Crucially, this arrangement, by definition, does not presuppose individual rights as prior constraints on adjudication, but exists only because it has overridden them. As such, the rights of subjects become outcomes of the legal process itself. What counts as property, who may own it, how it may be used, and when those claims may be recognised are all questions answered by the monopolist, rather than limits within which it must operate.

For this reason, a monopolised legal system necessarily entails de jure ownership of all property within its jurisdiction. Even where individuals, vis-à-vis each other, retain day-to-day rights to control particular goods, that control is conditional rather than absolute, resting on the continuing permission of the monopolist. The defining feature of ownership – ultimate decision-making authority – is therefore vested not in individuals, but in the institution that monopolises law. What appears as private property under such a system is better understood as a revocable licence, subject to alteration or withdrawal whenever the monopolist deems it necessary. In contrast to systems of adjudication that presuppose self-ownership and derive their authority from voluntary acceptance, a legal monopoly inverts the relationship: rights do not constrain law; they are created, modified, and rescinded by it. Liberty, in this framework, ceases to be a conceptual starting point, and becomes merely a contingent policy outcome.

This describes both the genesis and operation of the adjudicative authority of the modern state. States did not originate as agreements among free individuals who mutually recognised one another’s rights, but through conquest and subjugation. In England, for example, this process dates to the Norman Conquest of 1066, after which land and authority were seized by a ruling class whose descendants still form part of the institutional core of the state. The present monarch is, indeed, a direct descendant of William the Conqueror.

Subsequent developments – including the emergence of Parliament – were not social contracts with the population at large, but negotiated settlements among competing elites. The legal order that emerged did not presuppose individual rights as prior constraints; it distributed and regulated privileges under an authority that already claimed ultimate control. In fact, it is notable that landmark rights such as those articulated in Magna Carta arose when these elites were attempting to reach genuinely agreed limits on power between themselves – in a manner closely resembling voluntary dispute resolution. By contrast, the erosion of those rights, such as the recent proposed weakening of trial by jury, proceeds not from public agreement but from the state managing its own internal priorities.

It is no objection to any of this to point out that modern liberal democratic states possess constitutions, bills of rights, and elaborate legal and legislative systems that purport to bind the state and its designated actors to certain norms and procedures. If a monopolised legal or political system “grants” citizens certain rights, that is conceptually indistinguishable from a slaveholder granting his slaves the “right” to take Sundays off. Such a concession does not recognise the slave as the owner of his body or of his legitimately acquired property. It merely expresses the slaveholder’s preferred method of maintaining a peaceful, orderly, and stable plantation. The norms he abides by, or those that political theorists insist he should abide by – don’t beat them too often, allow rest, maintain predictable routines – may be instrumentally necessary to achieve his long-term objectives, or may reflect whatever moral scruples he happens to possess. But none of this touches the libertarian point. The fact that domination is most effectively or justifiably exercised within certain constraints does not transform domination into recognition of ownership.

A system in which my autonomy is respected because it is useful to the ruler, or because the ruler believes it morally incumbent upon himself to behave decently, is not one in which my autonomy is genuinely mine. It remains conditional, revocable, and subordinate – tolerated rather than recognised.

None of this is to say that limiting institutions are redundant from a libertarian perspective – only that their value is restricted to whether, and to what extent, they make a bad situation less bad. All else being equal, I would rather live in a society in which rulers must observe at least some procedural constraints before violating my rights than one in which they may do so at whim. But even where such constraints are derived from, or loosely echo, a libertarian conception of rights, their effectiveness is an empirical and often highly nuanced matter.

Some institutions appear to restrain state power, if only by providing a focal point around which the belief that it should be restrained can coalesce. The First Amendment to the US Constitution, for example, has arguably done a relatively good job of preventing explicit incursions into the freedom of speech – at least in comparison with jurisdictions that lack any such provision. Others, however, may function in precisely the opposite way. One might plausibly argue that the Commerce Clause has facilitated the expansion of state power by expressly enumerating something the state may do, thereby inviting increasingly expansive interpretations. Still others may serve to rationalise and streamline state intervention under the pretence of limiting it – as I would argue the contemporary edifice of Human Rights (capital H, capital R) often does. So too, again arguably, has democracy itself – that what is championed as government chosen by the people is, instead, a veneer of legitimacy that has simply dissolved major psychological barriers to state rule. More generally, the practice of cloaking coercive acts in elaborate and ceremonial language – “legislation” instead of edict, “taxation” instead of confiscation — functions as little more than a fig leaf. It does not alter the underlying character of those acts; it merely obscures it.

Nor is it any answer to object that a state, or a slaveholder, may be unable to enforce all of his edicts or realise all of his plans, or that he is otherwise reliant upon the compliance of his subjects. To draw an analogy: getting my dog to sit requires the dog to exercise its own muscles. It may refuse, hesitate, or otherwise make the task difficult. To overcome that, I might need to offer incentives or treat it more kindly so that it is inclined to comply. But none of this changes the underlying relationship: I remain the owner of the dog. Ownership does not imply omnipotence.

Either way, a benevolent slaveholder remains a slaveholder. The fact that he must treat human beings as strategic agents in order to govern them effectively does not erase the core wrong: that he has arrogated to himself an authority that properly belongs to them. His wisdom, kindness, prudence, or restraint may make life feel qualitatively different from that under a more vicious master, but none of it alters the fundamental fact that their bodies and property remain things over which he claims the right to decide.

The question of rights, it should be recalled, is not one of virtue but of exclusion and control – or, as noted earlier, of who is the ultimate decision-maker with respect to the moral ends of a given piece of property. In a monopolised legal system, that ultimate right of exclusion and control rests with the sovereign authority, not with individual persons. The sovereign is therefore the final arbiter of what counts as moral use. Political theorists who argue about whether the state should do this or that are, from a libertarian perspective, begging the question. Whether a slaveholder is wise, kind, or just in his dealings does nothing to alter the underlying problem: my person and property are not things over which a slaveholder ought to exercise any such qualities. The issue is not how well power is used, but whether it is rightly held at all. Rights “granted” under such a system are qualitatively – or, more precisely, praxeologically – different from rights as libertarians understand them.

The same kind of distinction applies to law. Law-making by a centralised authority is not conceptually equivalent to law-making among free agents. The latter resolves conflicts between person and person; the former resolves conflicts between the state and its subjects. This is especially evident in legislation, which is enacted ex nihilo, without reference to any concrete conflict between individuals. But the point holds even when, say, a sovereign adjudicates a dispute between two subjects. He may appeal to notions of fairness or justice, and we may even judge the outcome to be equitable. Yet this does not touch the central libertarian objection: the property at issue is not properly his to regulate in the first place. Conceptually, this is no different from a pet owner intervening to stop two of his dogs from fighting. He may do so sensibly or humanely, but that does not transform the relationship into one of equal agency or rightful authority.

Empirically, this is why state monopolisation of law tends to corrupt it in much the same way that it corrupts other domains. In ordinary commerce, industries tend to coalesce around standards and practices that best serve the needs of their customers. When the state displaces this voluntary process with compulsory regulation, those standards come to reflect the state’s own priorities instead, regardless of whether they serve the public at all. Law is no exception. When dispensed by a monopolist, it eventually becomes little more than a mechanism for managing the monopolist’s internal allocation priorities.

A legal system that genuinely serves people therefore does not merely function without compulsory monopolisation – it positively requires its absence.

4. Justifying Liberty

Much ink has been spilled over the supposed need to “justify” liberty. This is not to suggest that the exercise isn’t essential; rather that libertarians have been far too willing to let their opponents frame the terms of the conversation.

For instance, the choice often presented is between the supposed “selfishness” and “individualism” of a good’s original possessor being able to keep it on the one hand, and the supposed altruism and communalism of state redistribution on the other. Accepting this false binary concedes that statism enjoys the position of moral default, and that we are therefore scrambling to justify a social order based on intuitively negative human traits.

The real question, however, is not whether the original possessor should keep the good in question for himself, but whether he is the person entitled to decide its ultimate fate. If the answer is yes, then he is just as entitled to give the good away as he is to retain it for his own benefit. If the answer is no, and the state takes control of the property, the same logic applies. The state may choose to devote it to welfare provision or to champagne receptions for bureaucrats. Transferring ownership has nothing to do with whether a good will be directed towards qualitatively more “worthy” ends. When that good is scarce, somebody has to decide what to do with it to the exclusion of others. It is no more “selfish” and “individualistic” for that somebody to be the good’s first possessor than a latecomer.

This kind of acquiescence rests on the wider false assumption that statism is the default position – as if private property is an incursion into a pre-existing, idyllic harmony of distributive justice and equality which requires positive explanation if it is to be “allowed”. Reality, however, begins with the complete opposite. Initial, exclusive control over one’s own body is a scientific fact. People are naturally born with varying talents and abilities, and have different access to the raw materials the earth provides. The first or voluntary appropriation of any one of those resources is an equally real, praxeological necessity of human existence. None of these circumstances results from the application of a political philosophy, but are original, descriptive facts that must be presupposed. They therefore stand in no need of justification.[7]

A problem arises only when a second person asserts a claim over what is already under another’s control – whether through enslavement, expropriation, or redistribution. It is this action that requires justification, not the pre-existing state of affairs. Complaints that the latter is “unfair,” “undeserved,” or “unequal” may well be true, but merely pointing them out does not, by itself, explain why these factors should form a basis for rights – much less why an extensive apparatus of systematised coercion required to enforce such a basis would constitute a moral improvement.[8] Unless a positive argument to that effect can be supplied, nothing has been established, and life may proceed as before. One is no more obliged to justify what one already possesses than to justify the fact that grass is green.

What we can also see from the foregoing, however, is that even the attempt to resolve conflicts peacefully must already presuppose a libertarian conception of rights (which is the central insight of argumentation ethics). Such rights are not conclusions reached by political philosophy; they are presuppositions without which political argument cannot even begin. Anyone who claims that conflicts are resolved through “agreement” or peaceful settlement must therefore accept libertarian rights, because without them such agreement is literally impossible.

This has further implications for those who hold themselves out as libertarians. Argumentation ethics shows that if one seeks to resolve conflicts through norms rather than force, one must already be presupposing those rights. You cannot argue, persuade, or ethically settle disputes without presupposing self-ownership, equal standing, and control over one’s means of action. Reject those, and one is no longer engaging in ethics at all, but merely attempting to dominate.

Likewise, if “liberty” does not mean that individuals possess default authority over their bodies and peacefully acquired property, then it collapses into nothing more than a policy preference – a revocable licence granted by whoever happens to hold power. At that point, the word loses any stable conceptual identity. One does not get to say “I want a free society” while denying the very conditions under which freedom is intelligible. That is not an alternative route to liberty; it is a category error – rejecting the grammar of the concept while professing allegiance to it.

In short, one may reject God, natural law, or any particular philosophical justification for libertarian rights. But one cannot reject liberty as a presupposition of human interaction – rather than a product of political design – and still coherently claim to be arguing for a free society. It’s no different from claiming to be a dog lover through describing the qualities of a cat.

5. Engaging with State Power

A state is the institutionalisation of murder, theft, extortion, assault, and slavery. It is necessary to state this in such stark terms because many who profess to favour liberty fail to grasp how radically liberty stands in opposition to these evils. Liberty is not something that can be accommodated within a statist framework. There is no just theory of statehood any more than there is a just way to hold slaves, a just way to steal, or a just way to murder.

Nor can liberty be selectively “parceled out” – respected in some domains while suspended in others – according to personal preoccupations or fashionable priorities, whether drugs, emergencies, or war. Any political theorist who claims to support freedom only insofar as it serves ends he happens to regard as important, or who carves out exceptions for contingencies and crises, is not defending liberty at all. He is merely advising the slaveholder – offering suggestions for how domination might be exercised most palatably. In betraying the very substance of that which he claims to want, he is not a political philosopher as much as a political eunuch.

In the long run, this posture amounts to something worse than confusion: it is actively useful to power. By lending the appearance of moral seriousness and restraint, it provides a veneer of legitimacy for the state itself, and ultimately supplies the intellectual tools by which any outrage may be justified – so long as it is dressed in the language of emergency, necessity, or constitutional procedure.

Nor can state power ever be hijacked by libertarians “temporarily” or “conditionally” in order to advance the cause of liberty. Liberty is not achieved through top-down deployments of state power in pursuit of ends you happen to regard as good. Libertarians are usually quick to explain that the state is not merely wasteful and inefficient – so incompetent it struggles to run even a post office – but structurally prone to unintended consequences, mission creep, and institutional capture. Why should these pathologies suddenly vanish merely because you wish to aim the machinery of the state at objectives you personally endorse?

If your “prudent”, “limited” statism fails while draped in the rhetoric of liberty, the lesson that will be drawn is not that the state is the problem, but that markets do not work – something Argentine President Javier Milei is arguably in danger of illustrating. If, on the other hand, you succeed despite the structural obstacles, the message is no less destructive. You demonstrate that it is legitimate to use the state to get what you want, provided it is done in a suitably “necessary”, “proportionate”, “rational”, or “restricted” manner.

If that is the lesson people absorb, all you have accomplished is to normalise statism. Why would anyone feel compelled to dismantle the state? Where would the motivation come from to seek alternative institutions? What incentive would there be to experiment with non-statist solutions, or to take liberty seriously as a principle rather than as a rhetorical flourish? Why look elsewhere at all?

Either way, the result is the same. Heads they win; tails we lose.

Liberty does not fail primarily because of unapologetic statists, but because of those who wax lyrical about how liberty can solve every problem, only to lose their nerve at the final furlong. There is always a paternalistic residue – a lingering impulse to second-guess what might be “right” for 66 million other people – and a belief that this time state power can be wielded wisely, prudently, moderately, and with restraint. That they, uniquely, will act as the rational guardian, applying coercion in a way somehow immune to all the familiar pathologies of power. It is precisely this refusal to trust liberty all the way down that repeatedly smuggles domination back in through the side door.

Although he was making precisely the kind of call to statist arms with which I disagree, this quotation from Brandon Smith illustrates the futility of trying to sit within government while keeping it “small” and “limited” when the enemy has no such qualms:

It’s clear that our welfare systems are being pirated, that our country has been invaded and that at least one half of our government is in on the scheme. Yet, I see a number of conservative and libertarian voices who would rather blither on about small government theory rather than actually confront the culprits.

It doesn’t seem to occur to them that the government’s massive expansion is a symptom of our inaction on the “smaller” issues. If we can’t even deal with a bunch of low IQ pirates from Somalia and the garbage Democrats supporting them, then we’re never going to be able to deal with the “bigger” issues of federal waste, the central bank or the globalists.

There’s a good reason why public approval for congress is constantly sitting near record lows (currently hovering around 15%). All they do is maintain the status quo and impede every effort that might lead to a modicum of reform. Communists love these kinds of circumstances. They love legal purists and constitutional sticklers, because the purists make communist revolution possible.

This is not to say that I believe the federal government is the answer to everything, or most things. But at some point conservatives decided that government is not allowed to do ANYTHING. That it is supposed to sit idle while the country is overrun by barbarians and morally relative demons. That we aren’t ever supposed to retaliate and strike fear into the hearts of our adversaries.

I’m sorry, but we are at war and there is no place for such idealism any longer. Retaliation is the only thing that is going to save us now.

In short, if you choose to fight on your enemy’s field, you must be prepared to become one of them. There is no way to wield the machinery of domination without being shaped by it. If liberty is ever to be established on a durable basis, people must break out of the prison themselves – not content themselves with being moved into a cosmetically improved cell.

That requires aiming not at reform, moderation, or temporary restraint, but at the repudiation of statism in both its moral and practical entirety. Liberty cannot be installed from above. It can only emerge by dismantling the structures of domination from the outside.

So, with that in mind, what constitutes a viable political strategy for liberty, and how do we deal with statist menace in the meantime?

The first step is to look beyond the electoral orthodoxy of attempting to choose the “right” small-state leader – whose benevolence, in any case, resembles that of a pleasant slaveholder. Even if this were achievable – and the repeated spectacle of promising figures becoming worse once they take the reins should by now have cured us of naive hope – it would amount, at best, to a temporary reprieve. The entire apparatus of state authority would remain intact, just as the apparatus of slaveholding remains intact on a plantation, ready for a less kindly master to assume control.

Instead, we should be looking to nurture alternative institutions and structures of governance. By far the most viable strategy in this regard is the encouragement of secession and decentralisation of state power – a subject I have written about at length elsewhere, but whose advantages may be summarised as follows:

– It would drastically limit the scale of political error. Bad decisions made in, say, Wessex would not automatically bind Mercia, Northumbria, or East Anglia. Policy failure would be localised rather than national.

– It would reintroduce exit as a more viable constraint on power. If taxation, regulation, or social policy became oppressive in one region, people and capital could relocate elsewhere within Britain more easily than they can while trapped under the present Westminster monopoly.

– It would force governments to compete for residents, investment and talent. Smaller successor states would have stronger incentives to keep taxes lower, regulation simpler, and so-called “public” services functional, rather than relying on coercion and inertia.

– It would break the London-centric model of governance. Political, legal, and economic authority would no longer be concentrated in a single metropolitan centre insulated from the consequences of its decisions.

– It would reduce the stakes of politics. Control of a regional assembly is far less existential than control of the UK Parliament, lowering the incentive for culture-war politics and zero-sum ideological conflict.

– It would make uniform, one-size-fits-all policy impossible. Housing, planning, education, policing and welfare could reflect local conditions rather than being imposed according to abstract national models.

– It would curb the growth of a permanent managerial class. Smaller polities are less able to sustain large, unaccountable bureaucracies whose power rests on distance, opacity and complexity.

– To the extent we would still have to put up with policy experimentation, its consequences would be less drastic. Different regions pursuing different approaches to law, taxation, and social organisation wouldn’t risk nationwide failure.

– It would weaken state–corporate collusion. Firms would find it harder to lobby a single central authority for nationwide privilege, subsidies, or regulatory protection.

– It would make large-scale military adventurism far less likely. Fragmented political authority raises the coordination costs of war and reduces the ability of elites to externalise its costs.

– It would allow cultural and social differences to coexist peacefully. Regions with differing values could govern themselves accordingly, reducing pressure to enforce moral conformity at the national level.

– It would preserve British civilisation without requiring a single British state. Language, history, trade, and culture could continue to bind the islands together without being fused into a unified coercive apparatus.

– Secession has an established historical basis, as does the existence of small states.

The chief advantage, from the standpoint of political rhetoric, is that the message of local communities taking control for themselves is far more resonant than abstract arguments in favour of a unified but somehow “limited” state, or appeals to things like “property rights” in the abstract. Moreover, with geographically smaller states serving as replacement institutions for a larger one, we avoid the problem of an institutional vacuum that might otherwise follow the sudden collapse of a centralised state.

For that reason, it is neither necessary nor desirable to persuade the entire country to adopt a single libertarian programme of lower taxes, fewer regulations, or doctrinal purity. Although, ultimately, a free society can only truly flourish if its moral implications are realised, in the position we are in now, it is enough – and indeed preferable – for people to recognise that the ruling class does not serve them, and to demand greater independence to decide matters for themselves. That shift alone has a liberalising effect, even before any explicitly libertarian reforms are implemented.

In the meantime, there remains the question of how to deal with state power as it actually exists, and how to navigate our way through imperfect options. The principled conception of liberty outlined in this essay does not imply a refusal to engage with the reality of statism – as though one could simply “opt out” of choosing between flawed but available alternatives because none meet the standard of ideological purity. Nor does it mean that compromise is impermissible, or that one must refuse outcomes that fall short of the ideal. Rather, the difference lies in the rationale one adopts when confronting these tasks.

To illustrate with an analogy, consider two attitudes towards murder:

1. Murder is evil. In the real world, we may face only imperfect choices, each of which either increases murder, or reduces it without eliminating it entirely. We therefore lend cautious, conditional support to the option we believe will result in the fewest deaths – while still holding that murder is wrong in principle.
2. Murder is evil… but since the world is full of it anyway, we should accept that some forms of murder – limited, strategic, judicious murder – might even be good if carried out by the right coalition for the right ends.

Now substitute “statism” for murder. Anyone genuinely committed to liberty can adopt only the first rationale. The second differs from standard statism not in kind, but merely in degree. At best, it is directionless; at worst, it collapses precisely at the points where liberty is most vulnerable.

Whatever calamities the world may present – war, famine, disintegration, decline – the point remains the same. Upholding basic ethics in a world that refuses to follow them is not naïve idealism. It is the compass through the storm, the method of sifting better from worse, not a passive longing for a safe harbour.

6. Hopes for the Future

In closing, I’d like to respond to an assumption which seemed to me to be recurringly evident in the prior contributions which inspired this essay: the idea that we are now so firmly and institutionally entrenched in globalised statism, and that the population has become so degraded, demoralised, or incapacitated that either it is no longer capable of altering its political trajectory, or that the message of liberty is too far outside of their mental grasp.

This assumption is neither accurate nor, even if it were, especially relevant.

On the question of accuracy, recent history offers clear counterexamples. In the face of considerable institutional resistance, the British electorate voted for – and eventually forced through – withdrawal from the European Union. Whatever one’s view of Brexit, it demonstrated that entrenched orthodoxies can be rejected, and that political paradigms once treated as immovable can be overturned. Globalist liberalism no longer enjoys the status of an unquestioned default. This is not an especially barren moment for alternative ideas to gain traction. In fact, the bigger risk is bad alternative ideas taking hold.

On the question of relevance, political change is rarely blocked by moral decay or cultural demoralisation. Far more often, the obstacle is more mundane: inertia. And the principal catalyst is frustration. Neither is the necessary product of any particular social condition or institutional arrangement. Hardship can persist for decades if people believe there is no alternative; conversely, upheavals have often occurred during periods of rising prosperity, when expectations accelerate faster than fulfilment.

Crucially, that frustration is rarely articulated spontaneously by the wider population themselves. More often, it is given form by a stratum of thinkers, writers, and organisers for whom ideas, books, and extended chains of reasoning matter – and who function as opinion-formers rather than as passive reflections of popular sentiment. Political movements that present themselves as “popular” or “grassroots” are almost always shaped upstream by such figures, even when their rhetoric suggests otherwise.

Periods of genuine change are therefore inherently unpredictable, and they appear inevitable only in retrospect. On the morning of November 9th, 1989, few would have believed that the Berlin Wall would fall that night. It did – triggered by nothing more than a bureaucratic misstatement delivered on live television.

While the resonance of a particular message will certainly differ between time and place, there is likely to be far more utopianism in attempting to “second-guess” present conditions, or otherwise temper, hedge or dilute one’s argument in the hope that it will “work”. And while rhetoric certainly matters, the truth can only be told so many ways.

Far better, therefore, to simply advance a coherent argument and allow events to unfold as they may. Libertarians should concern themselves with getting their ideas rights. The rest is not theirs to command – and never will be.

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Notes

[1] Moral language about “rights” is often used more broadly to denote what individuals ought to have or be permitted to do, but are otherwise unenforceable moral claims. Such claims are conceptually distinct from the present usage. Here, the term “right” is confined to enforceable rights.

[2] I have discussed the nature of libertarian law in more detail in this essay, although some revisions are now required.

[3] Cf. Barnett, Randy E, Whither Anarchy – Has Robert Nozick Justified the State?, Journal of Libertarian Studies, Vol. 1 No. 1, 15-21 at 17-18. Any criminal defence barrister is likely to agree that one of the questions he most often receives is: “How can you defend someone who is guilty?” But the very reason we have trials is that guilt remains epistemically hidden and cannot be determined by any one person’s subjective apprehension of the case. A witness may be mistaken; apparently clear evidence may have been falsified; or the currently known facts may omit exculpatory or mitigating circumstances. Even a signed confession may prove unreliable on closer scrutiny if, for instance, it was given to protect the real perpetrator.

[4] Overcoming these epistemic difficulties itself consumes scarce time and resources and, therefore, the pursuit of greater certainty must be weighed against other ends. Thus, while adjudication seeks to determine what is the case, its ultimate function is to settle how the parties are to be treated in law in light of the need for a practical and finite resolution. It may well be better, for instance, for a party to accept an adverse judgment, even if wrong, than to continue disputing the matter.

The nature and extent of legal procedure is therefore determined ultimately not by moral axiom alone, but by relative valuation: by the importance attached to convicting the guilty rather than acquitting the innocent, and by how both are weighed against the pursuit of other ends.

[5] The requirement to compensate a rights-holder in such cases follows directly from the logic of moral choice under constraint. Suppose one faces an unavoidable choice between damaging property A or property B, both of which one owns. If A costs £1,000 to repair and B costs £4,000, then, all else being equal, the rational and moral choice is to damage A. Now suppose instead that A is owned by another person, while B remains your own. The rational and moral choice might still be to damage A. But the fact that the loss falls on another person does not extinguish your responsibility for it.

To deny compensation on grounds of “moral necessity” would create a perverse incentive structure, encouraging individuals to divert unavoidable harms onto others’ property rather than their own (or to otherwise bear no incentive to minimise them).

It should be remembered that a rights allocation cannot eliminate a realised cost; they can only determine who bears it. The existence of unavoidable misfortune does not entitle one to offload that misfortune onto others.

[6] The rulings of an adjudicator in a free society cannot “create” rights any more than they “create” truth. If you are accused of having stepped over a property boundary, a judge’s ruling that you did or did not does not make it factually so. Rather, he determines, on the available evidence, whether an agreed burden of proof has been satisfied, and his decision is treated as if it were the truth of the matter for the purpose of settling the dispute. He may, of course, be mistaken. Cf. Sharvy, Richard, Who’s to Say What’s Right or Wrong? People Who Have Ph.D.s in Philosophy, That’s Who, Journal of Libertarian Studies, Volume 21, No. 3 (Fall 2007): 3-24 at 13-14.

The same applies to questions of law. A judge does not manufacture rights, but applies presupposed legal principles to particular cases, often under conditions of uncertainty and in light of custom and convention. The question he is striving to answer is not what the parties’ rights are in the abstract, but how those rights properly apply to the particular case before him. Again, his ruling determines how the parties will be treated for the purpose of resolving the dispute, but, as with findings of fact, it may be disputed, ignored, or overturned by other adjudicators.

[7] The model of hypothetical consent detailed in John Rawls’s A Theory of Justice (rev. ed. Cambridge, MA: Harvard University Press, 1999) rests on a similar assumption. His so-called difference principle (Ibid., 65-66, 266), for instance, seeks to justify departures from equality, as if equality were a natural or pre-existing baseline. But no such baseline exists. Individuals begin in a world of unequal endowments, circumstances, and holdings, and it is precisely this diversity that gives rise to questions of justice in the first place. The burden of justification therefore falls not on inequality, but on any attempt to override existing holdings in the name of equality.

[8] A common category error in statist thinking is to assume that because a situation is “bad,” taking action to correct it is therefore morally justified. The former is a static evaluation of a state of affairs; ethics, by contrast, concerns choice among competing alternatives. It does not follow that because something is undesirable in the abstract, it is worth devoting scarce resources to changing it at the expense of other ends. Every intervention necessarily involves trade-offs.

For example, it may be true that a community has too few schools. But if the only way to build more is to seize land from existing homeowners, divert resources from other essential services, or impose burdens that exceed the benefit gained, the mere fact of scarcity does not settle the question. As Thomas Sowell has often observed, the relevant question is never simply whether a problem exists, but what the costs of addressing it will be.