#roderick long

Walter Block, unlike Hoppe and Rothbard, stretches a very literal interpretation of “self-ownership” in such a way that “indentured servitude,” for example, makes sense within the theory: one can alienate the property title one has to oneself. Hoppe would find this preposterous, as property-by-declaration rather than property-by-action; but indeed, to Block, this distinction seems like a farce, since one, after all, does not own one’s self, or one’s body, by virtue of (physical) action, i.e. labour.[2] (This is obviously absurd as an absolute capacity to legitimately alienate property, thereby without procedural discrimination, also suggests an absolute capacity to legitimately acquire property given a lack of procedural discrimination–the rights to property are thus rendered incoherent, or at least indistinct from a situation where property rights are absent.) This points to yet another issue. Hoppe did make a distinction between actions and declarations in acquisition, in order to root out Block’s absurd position (notice how Hoppe refers to the body as a proper means of acquisition to do so):

Furthermore, this distinction can only be made in such a clear-cut and unambiguous way because for bodies, as for anything else, the separation between “mine and yours” is not based on verbal declarations, but on action. The observation is based on some particular scarce resource that had in fact — for everyone to see and verify because objective indicators for this existed — been made an expression or materialization of one’s own will or, as the case may be, of somebody else’s will. More importantly, to say that property could be acquired not through action but through a declaration would involve an obvious practical contradiction, because nobody could say and declare so unless his right of exclusive control over his body as his own instrument of saying anything was in fact already presupposed, in spite of what was actually said.

This distinction, however, merely parallels that of the body (actions) and the self (declarations), and does not thus resolve the issues hitherto expounded regarding the relation of body and self in the process of ownership (this is obvious if one merely replaces “body” and “self” with these corresponding terms). However, to the extent that this hopes to be a parallel distinction, it is a false one: declarations are merely actions, even if “actions of the self” (whatever that may be), while actions nonetheless only function as declarations in the context of ethics, for, if one hopes to come to the conclusion of (rightful) ownership due to action, it must follow that such action can invoke a righteous declaration. Thus, the real distinction here is not between actions and declarations, but between a declaration that has action-other-than-declaration as a referent, and a declaration that only refers to itself. But this is still problematic: if the former is the only rightful means of ownership, then it already fails for it needs the latter to function. In other words, for one to be able to appeal to action as a means of ownership, one must provide a justification for the declaration that that is justly so. In shifting the burden of proof-of-ownership on action, and then justifying this by mere repetition of the distinction as a relevant one (one that nonetheless fails due to its reliance on the “body” idea that thus also links ownership to action), Hoppe is only being circular, not even tautological. How could one contest an ownership claim if it cannot be brought to the level of declaration, and some declaration of not only what is but what ought to be the case? More importantly, this seems to be a strangely empirical approach to verifying the truth of an ownership claim, when Hoppe himself has expressed argumentative sympathy for a priori methods first and foremost in his Argumentation Ethics argument.

The “performative contradiction” alleged to arise from arguing against self-ownership or (libertarian) property theory applies to both declaration and action, though these “contradictions,” as mere potential ones, tell us indeed nothing about the extent to which either ownership-by-declaration or ownership-by-action is legitimate or a right. In fact, this turns the tables on Hoppe’s argument, for, if one bars his false distinction, he indeed does not resolve for this apparent contradiction, one which I prefer to perceive as an antinomy: one in which an action’s status as stealing or owning are both valid and equally possible sound logical results, though they may be undetermined and be contradictory as they are suspended neutrally in the mind. Hoppe’s use of the non-aggression principle is mired in the exact same issues as self-ownership, hitherto expounded; Hoppe would have to sneak ownership into “the body” and then the “body” into the category the Non-aggression Principle addresses. Yet, as we saw from the start, Hoppe went from the body to ownership through the Non-aggression Principle. All still with the same logical flaws in the concept of self-ownership as such, being inadequate to the more robust property theories of libertarians like Hoppe. This is not tautology, but circularity, as far as we know, since the center of the argument is a concept (“the body”) arguably not analytically tied to the concept of ownership or non-aggression (there’s a better case for the idea that “self” is analytically tied in some way, but this does not get us very far on its own towards the libertarian’s theory of property for reasons aforementioned). Hoppe declares, with much unintended irony, that:

In making this argument, one would not have to claim to have derived an ‘ought’ from an ‘is.’ In fact, one can readily subscribe to the almost generally accepted view that the gulf between 'ought’ and 'is’ is logically unbridgeable. Rather, classifying the rulings of the libertarian theory of property in this way is a purely cognitive matter. It no more follows from the classification of the libertarian ethic as 'fair’ or 'just’ that one ought to act according to it, than it follows from the concept of validity or truth that one should always strive for it.

But if what is “fair” or “just” (or prescriptively/imperatively favored in general) is a matter of normative indifference such that our behavior simply follows from their nature, then the idea of “performative contradiction,” something incessantly appealed to in his argument, no longer functions, for an accusation of “performative contradiction” in this context must assume that an action presupposes a given (ethical) idea, i.e. must assume that all actions, including that of declaring, are already bound by normative conditions. That is, there is no “normative indifference,” or at least not one so tragic as to make the classification of such claims inconsequential to questions of what one should do, not merely on a practical level, but a theoretical one. Essentially, it is not straightforward that from justice/fairness and truth it follows that one should strive for them because what it is one should strive for is what is at issue prior to conceptualizing these statuses of action or declaration. Hoppe may seem to superficially recognize this, but I mention it because it doesn’t seem he follows the full implication, namely: while it may not follow from the cocnepts that one must strive for it, given Hoppe’s own argument, he must admit that in forming these concepts to begin with they are invested in with the sorts of things we might strive for or avoid. And its clear here that Hoppe seems to invest these notions with a commitment or attachment to some sort of praxis. Whether or not these are “cognitive” qualifiers, then, the difference between an “ought” and an “is” remain, and the argument for “Argumentation Ethics” suggest that somehow one can flow from the other, even if by a form of modus tollens (e.g., “If we had no right of ownership for things external to the body, we would not exist”) that tries to tell us what “should” not be “just” given the consequent would contradict matters of fact (notice, though, that the consequences aren’t always so clear–there’s no need to accept a necessary connection between antecedent and consequent in the previous parenthetical conditional, for example). If Hoppe is to declare himself an ethical cognitivist and rationalist, he must at least do better than that.

I.a.2. The Nature of “Argument”

As demonstrated earlier, Hoppe’s attempt at trying to demonstrate performative contradictions is misguided, in part because it relies on the conflation between the exercise of control and the right to it. This conflation is hidden only because he presumes that an exercise of control must depend on some normative insight, particularly one about rights. If one equally assumes there are no rights in the world at all, we are not left with death and destruction, but with step one, which is to decide and desire, and we’re at the very least left to settling our identity or, at a meta- level, our ideas about identity. First, the concept of a “right” is one of permission–its absence does not bar also the absence of its opposite, prohibition–and, second, to assume we are left with death and destruction to all is to imply that ethic’s task is reducible to establishing rights or to defend one’s persistence, rather than to guide action. A world without permissions may as well be practically the same as one with them, provided the same for prohibition, since a concept of rights do not exhaust all ways of negotiating control. This is illustrated in a scene from the first episode of the 2017 version of the anime Kino no Tabi, where townspeople in a town where murder is legal tell someone they’re ganging up on for the purpose of murder, this someone having come into the community for the purpose of wanton killing and having been caught in the attempt: “Killing is not prohibited. This does not mean it is permitted.” I would of course add that something permitted doesn’t mean it lacks prohibition: in the community, everybody is conceivably permitted to kill, but this does not mean on average that everybody is killed for the same reason under the same justifications. There is always a moral asymmetry in the eyes of every individual for the same act, and this need not be due to some inconsistency (if one insists on the idea that it must be due to an inconsistency, consider that one would have to admit self-defense as inconsistent). Now, one may insist that what I call “one in the same act” is not really “one in the same act,” but it would be pedantry–ultimately it arrives at the same point irrespective, which is that social or interpersonal context is relevant to the moral discernment.

What I have said about permission and prohibition in relation to rights is a purposeful aporia: in both cases, the point being made is that it’s senseless to speak of permission or prohibition without a context of societally arbitrated consequence, especially as the same act is at times simultaneously permitted and prohibited (e.g., killing as execution v. killing as murder). It is simplistic to assume that because something is punished it is prohibited, as that same object of punishment may may be a key means of the punishment and as that means of the punishment may be accepted within such a domain as designated by the object of punishment. The point of any ethical argumentation, in this case concerning rights theory, is to establish both permission and prohibition. We presume, if Hoppe is making an a priori case for his views and if the basis of this case is that the absence of rights is a universal incapacitation, then, for reasons aforementioned, it is an abject failure: in no way does Hoppe specify what constitutes permitting or prohibiting an act, such that it can be regarded in terms of rights or, if regarded in terms of rights, so that its obviously derived from the implosion of a performative contradiction in an argument against self-ownership. But, in the latter case, the level of specification needed to talk about prohibition and permission is simply impossible to achieve by simply demonstrating a performative contradiction when arguing against self-ownership. This does not even tell us what to prohibit in any robust sense. At most one could say it tells us what to avoid doing: avoid not owning ourselves. Yet, perhaps it even fails to tell us that much, as "ownership" is in such a case empty of content.

One might say my distinction between absences of ethics (absence of permission v. absence of prohibition, and absence of both permission/prohibition v. absence of of prescriptive claims) is itself practically meaningless, thus irrelevant to the hypothetical absence of rights in practice (whereupon such absence of rights would, to be practically “present,” have to manifest as universal prohibition). But even then, while this idea (i.e., universal prohibition taken to mean prohibition of everything) does not lead to an unfavorable practical consequence–that is, many of the behaviors we would intuitively prefer people practice would still be operative–the very hypothetical is an impossibility, as it results in theoretical contradiction. While this might get us to concede to Hoppe that rights may exist, these rights would still have no specifications that are uniquely, practically relevant to the capacity to argue, which is key to Hoppe’s argumentation ethics (which concerns ownership and aggression), nor are they more so-called supererogatory “ought” claims (rights give permissions and prohibitions, but abstractly considered provide no program of what ought to be done–which is the more relevant pretheoretical concrete question in an argumentative context, as an argument presupposes that one thinks some claims should be defended).

I say “so-called,” as what prohibition and permission require concretely is lacking without actually first considering these non-rights/proto-rights “ought” claims. In fact, universal permission, while leading to conceptual incoherence for rights, is sustainable through prescriptive claims that do not depend on rights. That is, conflicts become negotiable through achieving agreement about what should be done with scarce resources X, Y or Z, rather than by declaring rights, i.e. rather than by entitling people to an independent and unassailable sphere of action. While this may be practically difficult, it is not practically impossible, and so it is admissible when considering a minimum of what may be a necessary prerequisite for argument. More importantly, rights will remain mercurial at certain levels given those ontological conditions for them which are liable to change, something Hoppe doesn’t take into consideration when he, in sweeping fashion, moves from ownership in the body and in self, to ownership of other objects.

The relevance of this is that its entirely possible to look at the ontological status of things like “arguments” and “ideas,” and to thereby claim that their initial conditions aren’t dependent on self-ownership because, say, they are severally reproducible without exhaustion and thus do not depend on any particular medium, such as the body, or this or that particular body, but merely a mechanism for transmitting information. This mechanism may neither be in need of volition, nor may it require that any particular body should be owned by it’s “self.” Rather, it is sufficient that the body exercise it’s self, in the same way that a master may compel a contradicting argument from his or her slave. This is not say the latter is ethical, but to demonstrate once again that ownership, being prescriptive, does not seem to clearly be a precondition for the facts of argument and debate, although a desire or drive for ownership (justifiable or not) may be. Thus, the nature of an interpersonal argument must at least presuppose some defense of one’s assent, libidinal or affective, to the conclusion, such that one’s commitment would compel one to argue one way or another–whether that defense be rational or arational. As Robert Murphy and Callahan once stated[3]:

One is not necessarily the rightful owner of a piece of property even if control of it is necessary in a debate over its ownership. Because of this fact, a crucial link in Hoppe’s argument fails. Someone can deny the libertarian ethic, and yet concede to his opponents the use of their bodies for debate.

Helpful way of illustrating this, presented by Murphy and Callahan:

[…] imagine that a Georgist were to argue that everyone should own a piece of landed property. The Georgist could go so far as to claim that his position is the only justifiable one. He could correctly observe that anyone debating him would necessarily grant him (the Georgist) some standing room, and then he might deduce from this true observation the conclusion that it would be a performative contradiction to deny that everyone is entitled to a piece of land. We imagine that Hoppe would point out to such a Georgist that using a piece of land during a debate does not entitle one to its full ownership, and Hoppe would be correct. But by the same token, Hoppe’s argument for ownership of one’s body falls apart; Hoppe has committed the exact same fallacy as our hypothetical Georgist.

Additionally, the argument of argumentation ethics would not guarantee that these rights, while universal in regards to who it applies to, are prescribing something universally accessible (which also brings problems to Hoppe’s claim that any “some people can, but others cannot” construction of rights and obligations, is problematic). An easy example is “The universal right to tax” (one may invoke the Non-Aggression Principle, but that would ignore what I’ve said about “body” v. “self”, and its implications for the “owning” v. “stealing” distinction).

While there may be problems with this “right” or “universal” in particular, the point remains. In exercising this right, there are practical limitations, and costs, but this is irrelevant to the right as such, since rights-theory is a deontological framework–all it means is that it may lead to second-order rights and “shoulds” (hence the “some can” construction) or mere limited exercise. This means it is also possible for rights in the abstract to have divergent practical consequences in the concrete given the practical circumstances, ensuring that some may indeed hold a claim to something particular that no others can hold a claim to. In fact, recognizing this is in part a prerequisite to forming a property theory insofar as individuals relate and engage with each other, or otherwise live in society. That is, practical contradictions being an outcome of a right does not seem to have much baring on the validity or lack thereof of that right, since this simply speaks to the practical limitations on universally enforcing that right. Bottom-line: because one is, in the first place, trying to establish a coherent concept, there is no reason to resort to this limited understanding of “absence of rights,” since it is not even the starting point of conceptual inquiry in the context of argumentation.

The starting point of interpersonal argument is recognizing some external practical or theoretical contradiction amongst people. That is to say, an argument must in fact presuppose a contradiction external to it rather than its lack; it would be preposterous to declare that an argument must presuppose a lack of external contradiction, even if in its performance, in order that it can have holding, as there would be no point in arguing in such a case. What happens in arguments, stays in arguments, so to speak, regardless of the external prerequisites for an argument to happen: an argument that may not be made due to some societal restriction can still count as a false argument, as can an argument against that societal restriction. After all, arguing with others presupposes that we elevate the question of truth in a way independent of practical circumstances which may or may not allow for the given argument to be made, such practical circumstances themselves requiring of argument in some meta- fashion. Further, there is no reason to be morally invested in the practical circumstances allowing for the argument to be made without in turn making an argument for them, as well as seeing some overriding value in that particular argument. The lack of performative contradiction does not adequately provide for that investment because it does not evaluate the external contradicting alternative in relation to the practical circumstances of at least one of the arguers or one side of the argument.

Argumentation ethics, for example, does not answer for the value or lack thereof of inexistence. And, in perhaps a more relatable example, the fact that things may be produced a certain way in society may lead an arguer to a performative contradiction–such as a person arguing against capitalism or socialism while working at a waged job or working in a commune–but this begs the question of whether supporting capitalism is the proper alternative to being in material conflict or in ideological tension with the system one participates in. After all, in the latter case one seeks to not only initiate change only in one side of the conflict or tension, but insofar as this conflict or tension is deemed internal, it may, in seeing value in this tension, promote an internal reformation to something better and perhaps even more rational. In other words, a so-called “performative contradiction” may rely on a contingency and not anything indeed necessary, and it may in fact occur in the service of some movement towards some more rational state of affairs given the alternatives. What Hoppe would have a better chance showing, then, is how self-ownership is an analytic consequence of argumentation, that is a result of the nature of argumentation, rather than showing how it’s “contradictory” to the external, causal prerequisites for its capacity to exist, as there is no reason to assume all arguments must be in an equivalent capacity to exist for their truth or falsehood. To cite Roderick Long, there is a problem with the latter approach[4]:

Is premise (2) ['No position can be justified by argument if it denies one or more of the preconditions of interpersonal argumentative exchange’] true? It seems not. Consider the statement 'I am the only person left alive.’ One can certainly imagine circumstances in which one would be warranted in endorsing this statement on the basis of the available evidence. (The last astronaut left on the space station watches the Earth explode ….) Hence the statement could in principle be justified by argument. Yet it certainly denies one of the preconditions of interpersonal argumentative exchange – namely, the existence of other arguers.

Hoppe and Rothbard do not go for the former aforementioned approach (seeing property as an analytic result of the nature of argument), nor do they actively engage the question of “self” as the means of their argument. They do not even resolve issues with “owning” as such given the relevance of self and the fact that ownership seems to involve a bundle of different claims that may or may not be related according to our notion of self and the possibility of or interaction between different selves. This is because their theories are merely means for justifying a non-proviso Lockean view of property, and the flaws in their attempts to do so also reflect flaws, or limitations, in this view of property, which I will not expand on here. That is to say, their argument is not really about a metaphorical “self-ownership” in general, nor “ownership” in general, but that “self-ownership” and “ownership” consistent with non-proviso Lockeanism.

And to be clear, it’s not that accusing something or someone of a “performative contradiction” is not a valid accusation, but that such an accusation is inadequate to a full theory of property, especially when the accusation relies on a conditional premise that is dubious at best given the leaps in levels of abstraction or the unjustified conflation of categories as so far examined here. This even more-so when the practical prerequisites to argument is taken in social terms, wherein sociality or the capacity for sociality quite generally must obtain in some sense or at some level but no further specificity can really arrive except precisely through the exercise of that capacity for sociality in argument. This is a fair criticism as Hoppe and other libertarians jump from this to their very specific property norms or their particular interpretation of the non-aggression principle with not much to show in-between, as if these more basic claims were adequate. In fact, if one were to try and treat them as adequate, what results is an underlying and perniciously opaque form of circular reasoning as the concept of “ownership” in the premises already contain the full robust vision of property in the conclusion. If libertarians want a good property theory, they must take society, or the clash of individuals/individualities, and the process of individuation more seriously as opposed to burying it by presupposing a self-enclosed, unconditioned positively describable individual and deriving some abstract principle of property therefrom.

And as for the non-aggression principle: this principle has more baggage than libertarians would like to admit, as what exactly counts as “initiation” and “force”–thus “initiation of force”–is not actually so straightforward, although its easy for us to be seduced into identifying the answer to this with our intuitions or with what has been conventionally and customarily legitimized, especially the more complex or higher in scale the “agent” or “actor” under consideration may be. In the end, it doesn’t seem showing some “performative contradiction,” especially one based on a dubious set of conditionals, is adequate to positing instead a non-aggression principle as it would seem that it is perfectly consistent to endorse that argumentation has its limits in the resolution of conflict, or that in some scenarios one is free to use force or not. In fact, the very holding of a non-aggression principle shows this to be a possibility, otherwise one would be a straight pacifist. The performative contradiction of arguing for the use of force or violence to resolve a conflict, or the performative contradiction of arguing against ownership, may at most tell us that there must be some limit to the use of force. The question then is what the scope of force is, and there doesn’t seem to be anything in Hoppe’s argument that would truly delineate that. I personally hold to the non-aggression principle, but my ontology of individuals and societies, and my interpretation of the non-aggression principle, seem to be distinct from most right-wing libertarian’s ontologies and interpretations, and this is largely manifest in disagreements on property. Again, it seems to me Hoppe is being circular in implicitly and covertly presupposing a theory of property encapsulated under “self-ownership” to justify the non-aggression principle, since he also uses the non-aggression principle to establish the proper boundaries of extended exercise of control prohibited by a contradicting ownership claim. Nowhere does he analyze “initiation” and “force” more fundamentally, prior to and independent of discussing ownership, and he also ignores tough questions about the role of self in ownership and the ontological status of selfhood. In many ways, he lets our intuitions do the work, which is what makes his work seductive.

I.a.3. The Limits of the Categorical Imperative

The meaning or usefulness of the categorical imperative, the first formulation in particular, is not derived from its ability for normative justification. This is inherent to Kantian moral universalism: “Why do the good?” Kant’s imperative (first formulation) does not itself provide a solution for this if its argumentative force remains contingent on our own subjectivity, although we must keep in mind this imperative’s relationship to Kant’s other formulations (especially his ideas of “ends-in-themselves”). We’ve already seen how Kant’s categorical imperative can obliterate a choice of principle, but that does not show how the categorical imperative narrows down to the best principle. Rather than extensively argue for this point, I will illustrate this with one example: Which one is an objective principle–pacifism or self-defense? Both of them lead to roughly the same state of affairs if everybody followed it, except one is qualified and the other is not (this qualification, exemplified in “self-defense” in relation to “pacifism” in this case, is what drives my case that a “universal ought” is not a “universal does” [i.e., it is a practical contradiction that both a killer and his victim are practicing self-defense–so at any moment only some can exercise the universal right of self-defense]). This means Hoppe’s attempt at specifying a property theory on the basis of performative contradiction is limited to a point of meaninglessness, and that his criticism of other property theories is ultimately not substantial. Of course, this would be an acontextual caricature of Kant’s system, but for practical purposes I will limit my criticism to this as Hoppe’s claim of universalizability doesn’t seem to pay mind to Kant’s other formulations.

So-called “Conclusion”

The only thing we are able to say thus far is that rights exist, as does ownership, and that we need a coherent ethic of ownership that addresses, or accommodates to, the antinomy of theft and acquisition inherent in the idea of ownership itself, as well as a theory of what rights are and what qualifies as a “right.” In addition, we may be able to say “self-ownership” exists in the clear metaphorical sense, that the “self” has its own determination, is “free,” but this may as well just be an existential outlook that does not directly translate to any political program, nor makes any comment on one. It does not provide for the theory of property Hoppe tries to argue for as a necessary result of “self-ownership.” This is not, of course, the only argument out there for self-ownership; there are consequentialist appeals to it as well, and there are also different interpretations (such as Walter Block’s and Nozick’s, the former of which was mentioned in passing). I will address most of this in a subsequent post. Although the argument for “self-ownership” is, in a subtle way, entangled with right-libertarian property theory (non-proviso Lockeanism), I will certainly be addressing property theory, along with interpretations of the Non-Aggression Principle, in separate posts, albeit united with the post-series–each post will repeat the introduction written at the top of the post.

Hoppe, Hans-Hermann, “Argumentation and Self-Ownership”, Ludwig Von Mises Institute (Auburn, 17 August 2010) <http://mises.org/daily/4641/Argumentation-and-SelfOwnership> [accessed 28 December 2013]

Block, Walter, “Toward a Libertarian Theory of Inalienability: A Critique of Rothbard, Barnett, Smith, Kinsella, Gordon and Epstein”, Journal of Libertarian Studies, 17 (2003), 39–85

Murphy, Robert, “Hans-Hermann Hoppe’s Argumentation Ethics: A Critique”, Journal of Libertarian Studies, 20 (2006), 53–64