Walter Block asks us to consider the following case: Suppose someone is shooting at you. He has two babies strapped in front of his body. He is clearly an aggressor and, of course, you have the legal right to shoot back in self-defense. The moral and ethical considerations as to whether you ought to shoot back are the subject of debate, and Murray Rothbard has addressed those debates extensively, but from the perspective of libertarian law there is clearly no legal dispute here. This is not a matter in which there are legal arguments on both sides, though there may be debates about what counts as proportionate use of force in defending yourself.
Walter Block thinks otherwise. He thinks that, according to the non-aggression principle, you cannot use force in these circumstances, as shooting back would put the babies in the line of fire. He has invented a non-existent legal problem in order to bypass the powerful moral and ethical arguments advanced by Rothbard. Here is what Walter says:
A GRABS B TO USE as a shield; A forces B to stand in front of him, and compels him to walk wherever A wishes. A then hunts C in order to murder the latter by shooting him. C also has a gun. Is it legally permissible for C to shoot at A in self defense under libertarian law? Were C to do so he would have to kill B, the innocent shield, in order to defend himself against the perpetrator, A. Assume that this tableau takes place on unowned property, so that the issue of the owner’s rules does not come into play.
The first answer that comes to mind is that it is not. After all, B is a completely innocent person, and, seemingly, the non-aggression axiom of libertarianism was meant to apply to cases precisely like this one. This axiom states that it is illicit to initiate aggression against any non-aggressor, and B, by stipulation, is a non-aggressor. There are no exceptions to this general rule. Thus, it is difficult to see how C shooting B to get to A can be reconciled with libertarianism.
Walter’s analysis goes wrong with the first question he poses: “Is it legally permissible for C to shoot at A in self defense under libertarian law?” As already indicated, there is no legal question of whether C has the legal right to defend himself against A, who is trying to murder him by shooting him.
Why does Walter think that there is a legal question in this case? Walter’s interpretation of the case is that when C shoots at A, he might hit B—who is in the line of fire—and, as Walter sees the matter, unless we can somehow depict B as an aggressor, C violates the non-aggression axiom. Clearly Walter has made a mistake in presuming that the legality of self-defense in these circumstances requires that B must be viewed as an aggressor. In libertarian law, defending yourself does not violate the non-aggression axiom merely because an innocent person may somehow be in the line of fire. A has violated the non-aggression axiom by seizing B and putting B into the line of fire. If B is killed, A is the one who is legally responsible for his death, not C. The non-aggression axiom does not take away C’s right to defend himself by firing back at A.
There is a further problem with Walter’s analysis. He wrongly thinks that shooting at B—the person in the line of fire—violates the non-aggression axiom, but this mistake now puts him in a difficult position because he also wants to say that C can shoot at A in self-defense. How can he climb out of the hole into which he has dug himself? His strategy is ingenious but depends on the false premise that shields are swords. By means of this strategy, he attempts to turn B into an aggressor. He offers an analysis that is impeccably-reasoned but depends on the false premise that shields (in this case the babies) are swords (that is, in his view, the babies are aggressors). This premise is patently absurd. Shields are not swords and calling them swords does not change this. An argument with a false premise lends no support to a conclusion.
Walter’s rejoinder is that the premise is not false, and he argues for this by inventing a concept he calls “negative homesteading” or “homesteading misery.” He says:
In ordinary homesteading. . .or what we must now call positive homesteading to distinguish it from this newly introduced variety, it is the first person upon the scene who mixes his labor with the land or natural resource who comes away with the property rights in question. It is the first man who farms a plot of land, who becomes the rightful owner.
A similar procedure applies to negative homesteading, only here what gets to be “owned” is a negative, not a positive. This concept refers to some form of unhappiness, not a benefit such as owning land. The ownership of misery, as it were, must stay with its first victim, according to this principle. He cannot legitimately pass it onto anyone else without the latter’s permission….
Let us now return to the ABC shooting case. Who is the first homesteader of the misery? Who is the person whose rights were initially violated? Clearly, this is B, not C. A started off this scenario by grabbing B, placing him in front of him, and frog marching B off in the direction of C. As it is legally impermissible according to libertarian law for D to transfer his lightning bolt onto E, so too is it illicit for B to transfer to C the misery first imposed upon him, B, by A.
How is B doing this, pray tell? At first glance, B is doing nothing of the sort. Indeed, he is doing not much at all, playing, merely the rather inert role of shield. We may even assume he has been drugged into docility by A; that is why he is such a cooperative shield. The foregoing notwithstanding, B is indeed attempting to pass on his role of first victim onto C by in effect acquiescing in his guardian angel’s shooting of C.
Let me attempt to put this into other words, since the active verbs cannot be entirely accurate, particularly if B is unconscious. We, the disinterested judges, are attempting to determine whether or not it is legitimate for B (or, rather, his guardian angel) to shoot C, or for C to shoot B, given that one or the other must die, arguendo. B’s case, if not B himself since he is now unconscious, is buttressed by the claim that for C to shoot him would be unjustified since were C to do this, it would constitute murder of an innocent man, B. However, when we look at this episode through the eyeglasses of negative homesteading, we arrive at a very different conclusion. Here, B is the first victim (of A) and, as such, he cannot be allowed to pass on his misery to C, the intended second victim of A.
Walter has “defended” the false premise that “shields are swords” with this notion of “negative homesteading,” but his defense fails, for two reasons. First, “homesteading” has a clear meaning in libertarian theory. You homestead unowned property by mixing your labor with it and thus acquiring it. But there is no such concept as “negative homesteading” in libertarian theory. Walter acknowledges that this concept is not found in “classical libertarianism,” but that is the only libertarianism there is. “Negative homesteading” makes no sense. It is like saying that a doctor who gives first aid to someone who has been shot is “negatively shooting” them. Orwellian language of this sort that transforms things into their opposites is an assault on clarity.
The second reason Walter’s defense of “shields are swords” fails is that the legal right to defend yourself has nothing to do with homesteading, genuine or imaginary. Libertarian homesteading is an account of the way property is acquired. This account belongs to a theory of justice and has nothing to do with the legal right of self-defense.
The essential problem with Walter’s interpretation of the legal rules of self-defense appears to be that he does not like the conclusions to which Rothbard’s theory of justice leads. In an attempt to derive the opposite conclusions from those arrived at by Rothbard, Walter attempts to reinvent the meaning of libertarianism and to that end he relies on an Orwellian transformation of “shields” into “swords.” His fundamental mistake is to treat a question of positive law—when do you have the legal right to shoot back in self-defense?—with the normative question of whether you ought to do so, given the presence of the babies. No wonder he finds himself in a topsy-turvy world.
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