The Ethics Of Liberty - Property And Criminality
The Ethics Of Liberty by Murray Rothbard
In chapter 9, Rothbard discusses how to identify criminals and respond to crime. Previously, he defined crime as using physical force to take control (ownership) of someone else's body or property. According to the natural law of human nature, every person owns their own body because the human mind controls the body's movement. Following that a person rightfully owns goods which were created by mixing his labor with previously unused raw materials found in nature.
Picture a scene. You are walking down a city sidewalk. You see another man in the distance walking towards you wearing a white shirt and carrying a bag of money. You know there is money in it because there is a big dollar sign, $, printed on it. Then all of a sudden another man appears, walking across a side street wearing a black shirt. The man in the black shirt (BS) sees the man in the white shirt (WS), and runs over to him grabbing the bag of money. As you approach them they are struggling against one another trying to take the bag of money from the other.
It is obvious what you should do, right? BS is trying to steal the money from WS. You should jump into the fray to help WS secure his money from this apparent robbery. Not so fast my friend! We don't know who was the original owner.
"we do not yet know which one of the two men is the legitimate or just property
owner. We can only find the answer through investigating the concrete data
of the particular case"
After inquiry it may come to light that BS originally owned the money and WS broke into his house to steal it. That would make BS the legitimate owner. Or the truth may be that the money originally belonged to WS and that he was returning home after withdrawing it from his bank. To have a free and just society, decisions of ownership like this must be based on which of the two had a natural right of possession.
"we only recognize private property claims that are just- that emanate from an
individual's fundamental natural right to own himself and the property which
he has either transformed by his energy or which has been voluntarily given...
to him by such transformers."
We will look at each of the possible scenarios and what is the just outcome. From the perspective of WS claiming he owns the bag of money:
- We know clearly that his ownership claim is NOT criminal
- We DON'T know clearly that his ownership claim IS criminal
- We do know that his claim IS criminal in nature, but do NOT know who is the rightful owner
- We do know that his claim IS criminal, and do know who IS the rightful owner
Now imagine, I have stopped the fight and separated BS and WS from each other. I have grabbed the money bag and am determined to give it only to its rightful owner. I have also administered truth serum to both so that there is no doubt in their testimony. To those now passing by along the street, it has been a very strange situation to witness. You might ask why I was carrying truth serum and a syringe with me. Just for cases like this, I would answer!
Scenario 1 is the most simple. The situation is just as it looked, WS is no criminal and rightfully owns the money. So, I give him back the money and send him on his way home. BS is held accountable for attempted theft. The real world implications are that any money or property taken by force is unethical. That means nationalizing industries, socialism, civil asset forfeiture, territorial conquest, and even taxation are unethical acts. If we are to have a free and just society, we must protect individuals from such crimes.
Scenario 2 is very similar. BS admits he was trying to steal the money from WS. The money doesn't belong to BS. Yet, we learn next that WS picked up the bag only 10 minutes ago. It was sitting on the sidewalk. He asked around and no one claimed it, so he did. The next step would be to notify the public about the bag which was left on the sidewalk. After a reasonable amount of time, if prior ownership can't be established, then the bag of money becomes unowned. WS is now the new owner because he found it unowned and made a first new claim of ownership to it.
Scenario 3 is a modification of 2. Just as before, we know BS was trying to steal the bag so he has no legitimate claim. But now we know certainly that WS also stole the bag of money. Instead of him finding the bag laying on the sidewalk. WS gained possession of the bag by stealing it from someone else. But we don't know who. Despite investigations and advertisements, the mystery is never solved. We don't know who the money should go to, but we do know that we can't let WS have it. He must be punished for theft. What do we do now?
"Applying our libertarian theory of property, the [bag] is now- after [WS] has
been apprehended- in a state of no-ownership, and it must therefore become the
legitimate property of the first person to "homestead" it- to take it and use it,
and therefore to have converted it from an unused, no-ownership state to a useful,
owned state. The first person who does so then becomes its legitimate, moral, and
The question then becomes how does one now become the legitimate owner of a previously stolen good without being the victim? Practically, there must be some kind of sale through an auction or in a store. Local governments do some of this type of work today. Of course they also sell items that they confiscated unethically themselves. Conceivably there could also be a private organization that offers unowned contraband for sale.
It may not be obvious but scenario 3 rejects the legitimacy of the concept of slave reparations today. It made sense to give newly freed slaves land, money, or goods to compensate them for the labor which was stolen from them. But today the land worked and the goods produced by their labor either doesn't exist anymore or it is impossible to determine which slaves' descendants have legitimate claims to ownership of land or goods. I am not saying we don't know whose ancestors were once slaves. What I am saying is that there is no way to link specific parcels of land and units of labor worked to specific people today, in other words, we can't identify heirs of specific items. It is also unjust to take by force money or goods from people today who legitimately own those items, in order to repay descendants of slaves generally speaking.
Scenario 4 can end in two ways. First, we can establish that BS was in fact the original owner of the money and was trying to take it back from WS, the thief. In that case we punish WS for theft and restore the money to BS. Second, neither BS or WS are the rightful owners of the money. But in this scenario we take the bag back to the place where WS stole it. Laying there on the ground is a man wearing a green shirt (GS). It is clear that someone beat him up, so we ask GS what happened. He says that a man in a white shirt beat him up and took his bag of money which he had just withdrawn from the bank. He also correctly describes what the bag looks like. We have identified the rightful owner of the money and restore the money to him. If GS dies, then his heirs will receive the bag of money in his place.
Building on the foundation of natural law, natural rights, and the concept property Rothbard deduced with these four scenarios a libertarian theory of criminality.
"a criminal is someone who aggresses against such property. Any criminal
titles to property should be invalidated and turned over to the victim or his
heirs; if no such victim can be found, and if the current possessor is not himself
the criminal then the property justly reverts to the current possessor on our basic