Indian Libertarians

Jurisprudence and the non-aggression principle: tackling the tough questions

Shivank Mehra Wednesday December 17, 2014

The non-aggression principle (NAP) is the cornerstone of libertarian legal philosophy. It is a legal maxim that asserts that it is wrong to initiate the use of force or fraud against the person or property of anyone. This seems fairly intuitive and easy to accept. The non-aggression principle is usually understood in the context of self-ownership and the homestead principle. That is, individuals fully own themselves and can acquire property right in unused natural resources by "mixing their labor" with it (Example: a person begins to farm on an unused land, and thereby makes it his property). Despite the elegance of the NAP, there remain certain questions of jurisprudence where the NAP is either lacking or does not give satisfactory answers. In this article I will discuss some of these issues.


  • Punishment and restitution: the NAP prohibits aggression but does not prescribe what consequences an aggressor must face. Should the aggressor be punished? Should he be made to pay restitution? If so, how much? Rothbard proposed "the proportionality rule" in order to determine the extent of punishment/restitution, which is to be determined in proportion to the seriousness/damage of the crime. This still does not answer the question since "proportionality" is still very much subjective.


  • Child rights: Does a child have a right to be cared by his parents? Many libertarians have simply dismissed the idea. Some have insisted on it. I hold that when two parties engage in a voluntary act that affects the future life of a non-consenting party (the child-to-be-born), some kind of debt is due. However, after many debates the issue still remains highly contested.


  • Contract theory: According to Rothbard, “Validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft).” The most glaring flaw in the Rothbardian contract theory is that it rules out the possibility of any enforceable contracts between private law-enforcement agencies that might set the rules and methods of settling inter-agency disputes (since such contracts would not involve transfer of property titles). This is just one example. One can easily imagine the immense difficulty of organizing a society with such a limited applicability of enforceable contracts. Obviously there should be some limits to what kind of contracts should be counted as enforceable, but as of now the NAP does not give us exact answers.


  • Digital property: Is hacking someone's account by using one's own computer a crime according to the NAP? It is not clear how property rights have been physically violated in this case. After all, one has only used one's own computer to access the information that the network is broadcasting. One solution to this problem is for internet service providers to set terms and conditions that prohibits hacking. However, with the advent of the internet age a new concept of property ("digital property") may need to be introduced.


  • False libels: Spreading false information about someone in order to damage their reputation is not an offense under the NAP. This may not be satisfactory to the customers of arbitration. The British common law evolved from cases settled by competing jurisdictions, and consumer choice led the common law to develop a law against false libels. Some may argue that it is a reasonable restriction on individual liberty, but the fact remains that it is not warranted by the NAP. It remains unclear if such laws are to be welcomed as a healthy and natural development in the market, subject to the forces of supply and demand, or they are to be shunned by libertarians as "unlibertarian". The assertion that competing jurisdictions will implement laws strictly according to the NAP remains unproven, and a question arises as to what implications this has on libertarian legal theory.

As more and more complex social relationships evolve, our simple conception of the NAP may not always give the most satisfactory dispute resolution. However, if we abandon the NAP, on what basis do we claim the legitimacy of the market or the illegitimacy of the State? These are important questions that libertarians must answer as our movement moves forward. One possible solution to this problem could be the idea of panarchism. It is a form of anarchism that does not prescribe any specific legal maxim but merely requires that individuals be allowed to set up, subscribe to, and unsubscribe from the legal systems of their choice without being limited by their location. Disputes between different legal systems are likely to be settled by arbitration, given that they are not allowed compulsory taxation and thus do not have endless resources at their behest. This allows great flexibility in the legal systems, and laws are likely to represent the demands of the people.