A Brief Introduction to Libertarian Legal Theory
Libertarianism is in essence a philosophy which deals with the proper role of law in society, although it is not often considered as such. Indeed, Frédéric Bastiat in his seminal work The Law discusses this role of law, and concludes that the law should merely be utilized in the protection of person and property. He built on the classical liberal tradition started by the likes of John Locke and the American founding fathers, which believed that governments are created for the purpose of safeguarding the lives, liberty, and the justly acquired estates of citizens.
As a law student, I appreciate the need for Libertarian Legal Theory if the cause of liberty is to gain widespread intellectual favor outside of the United States. In this article I want to provide a brief introduction to the legalistic realm of libertarianism, in the South African context. This will most likely turn out to only be a translation of the commonly accepted principles underlying the philosophy into legal theory. While I did come to the phrase ‘Libertarian Legal Theory’ by myself, I must recognize Stephan Kinsella as apparently the only notable libertarian to use the term prominently. He has done a considerable amount of work on the matter within the American legal context. I intend to publish a much longer, more academically-inclined text on Libertarian Legal Theory, which I have already started working on, in the future. The concepts which will be mentioned here, such as ‘positivism’, ‘statocentrism’, ‘common law’ etc. will therefore not be elaborated upon fully.
Legal positivist John Austin described the law according to command theory. This means that law is a command handed down by the more powerful entity (the State or sovereign) to the weaker entity (the individual or citizen), and is to be obeyed by such weaker entity if he hopes to escape the sanction, or punishment, that will follow on his disobedience. Sir Frederick Pollock disagreed with the command theory and said law simply needs a ‘political community’ of persons who regard the set rules as binding upon them. I however regard these two ‘theories’ as saying the exact same thing. A binding rule is a rule with a consequence. The law can aptly be described as a system of rules which carry force – i.e. if it is not complied with, the State will initiate force against the disobedient subject.
One can say that Libertarian Legal Theory confines itself only to matters of force. Feminist Legal Theory may concern itself with the fact that historically only three women have been elected to the International Court of Justice. Critical Legal Studies may take issue with the fact that the ‘logic’ underlying law has been almost exclusively determined by white men. Legal positivists concern themselves with the integrity of the legal system as an essentially self-contained ecosystem. Libertarian Legal Theory will find overlap with many other schools of jurisprudence, but concerns mostly State initiatory force. Many other concerns do flow from this, for example, when is property justly acquired, or when is legislation legitimately binding? On the other hand, Libertarian Legal Theory would most likely not have a definitive opinion on the distinction between international and national law, as the principles it contains apply across boundaries.
The principles upon which Libertarian Legal Theory rests, from the South African common law perspective, is the doctrine of self-ownership, informed consent, and the nemo plus juris rule. All three of these lead to one another as a matter of course, and in a way, say the exact same thing in practice. However there are some theoretical differences which distinguish them. I will examine each principle briefly.
‘Self-ownership’ is simply one way to say that individual human beings are not slaves or computers. By virtue of our capacity to rationalize – i.e. make decisions which we can justify through reason, and accept the consequences and responsibility for those decisions – as individuals and not a collective hivemind, are we said to ‘own’ ourselves. This does not mean we are islands unto ourselves and completely isolated from the rest of humanity. By our nature, humans are social beings and interact, individually as well as in groups (with the most relevant groups being the family and the community). But we retain our individuality in perpetuity. A person in a given group, can at any stage consciously diverge from the group’s opinion, culture and interests. It is naturally impossible to alienate or lose one’s own individuality. Self-ownership is thus not a highly conflated philosophical concept but a logical result of our existence.
In our common law, self-ownership finds expression in the doctrine of legal subjectivity. Every individual is a legal subject; however under the erstwhile Roman law, slaves, and even prisoners of war, were not legal subjects. Juristic entities are also regarded as legal subjects, although it is preferred to refer to their legal subjectivity as legal personality. From legal subjectivity flows what is known in South African law as subjective rights. This is, however, a misnomer which came about as a result of a direct translation of ‘subjektiewe reg’ from Afrikaans to English. In our context of Libertarian Legal Theory, it is preferable to refer to individual rights. Libertarian and classical liberal theory describe the doctrine of individual rights as the ability of every individual to pursue his own interests unhindered, while not violating the same ability of other individuals. The common way to describe this is that every person has a right to life, liberty, and property.
It is because we ‘own’ ourselves that only we, as individuals, have the entitlement to alienate or modify our legal and moral abilities (i.e. our rights) and the product they yield. The main ability concerned here is our labor – physical or mental – and all that follows from it. Within the context of Libertarian Legal Theory, the main question to be asked in a given legal issue, is whether or not consent is present. Any damage or apparently harmful consequence that results from a consensual situation is no matter of law, as provided by a maxim in our common law known as volenti non fit injuria (a willing person is not wronged: he who consents cannot be injured). The consent must be informed, i.e. the person must have the mental capacity to provide consent. This is not always naturally possible, and thus, consent is not an absolute requirement.
Allow me to illustrate by using two examples:
- Person A wants to try an exotic new drink on the market. The producer of the drink, company B, warns its customers that the drink contains a type of poisonous chemical which gives it its exotic flavor, and that they have no way of judging how the poison affects a given individual customer. Person A nonetheless decides to try the drink, and subsequently dies. Person A provided informed consent and therefore B cannot be held criminally liable.
- Person A is being held hostage in his home. His neighbor, B, a private security contractor and former police officer, sees what is happening inside. B realizes that A is in grave danger and breaks down the door to A’s home, proceeds inside and disarms the hostage takers. The door – A’s property – has been broken without his consent. However, he could not provide consent, and B will still not be liable.
I will refer to the general principles underlying libertarianism to explain this second example above.
The ‘non-aggression principle’ (or axiom) is the overarching principle in libertarian thought which can be said to encompass all the principles I am discussing here: self-ownership, informed consent and nemo plus juris. According to this principle, no person may initiate force against another’s person or property. However, persons may use defensive force to guard their own person and property against assault, as well as the person or property of another. This second, highlighted leg of the ‘NAP’ is essentially what justifies the existence of government within libertarian theory. Bastiat also describes the law, through the State, as a collective tool for defense.
Clearly, in our example, B is acting within the ambit of the NAP since he is using defensive force to save A from the hostage takers. South African common law adequately makes provision for such a situation, as well. Under our law of delict (tort), a defense in court that can be raised to escape liability for damaging the property of another, is necessity (self-defense is also such a defense). According to the defense of necessity, “[damage causing] conduct directed against an innocent person for the purpose of protecting an interest of the actor or a third party (including the innocent person) against a dangerous situation” (Neethling, Potgieter and Visser) is lawful, and will exclude delictual wrongfulness on the part of the actor.
Therefore, the common law provides an answer. The NAP, being the overarching principle in libertarian theory, is assisted by rules of law which have developed over centuries. The NAP, or the principle of informed consent, is not being ‘limited’ by the common law, but is merely being applied within the context of the matter at hand. Principles of common law can also assist in justifying why a doctor may amputate a leg while the patient is unconscious and cannot consent, and why a parent can kill a neighbor’s large dog running toward his baby child.
The common law, from most accounts, is accepted by libertarian theorists. Both Stephan Kinsella, as well as Bruno Leoni (author of Freedom and the Law) regard the common law as a more justifiable law, over statutes. I am inclined to agree to an extent. The problem with law, thus, arises in the case of legislation and statutory law.
Nemo plus juris
Legislation is often based on the fallacy of circular reasoning. Take this example as an illustration:
Libertarian A asks positivist B why the Equality Act of 2000 is binding on his private business. B tells him that the Equality Act is authorized by Section 9 of the Constitution of 1996. But what authorizes the Constitution? The people, answers B, via the social contract. How is the social contract manifested in South Africa, asks A. By the Constitution of 1996, says B.
Often times, it does not even get as far as the social contract. Even so-called ‘legal naturalists’ fall into the trap of using the Constitution to justify itself, by referring to Section 1(c). The Constitution itself makes no reference to a prior ‘social contract’ and instead bases its own legitimacy on the common will, as can be seen in the Preamble.
The ‘common will’ is problematic as a justification for the existence of the Constitution (and by extension, all other legislation), with simple reference to something called the nemo plus juris – a common law maxim. Translated from Latin, the rule basically says that no person can delegate or transfer a right which he does not have himself, to someone else. To put it more simply: you cannot give someone else something if it’s not even yours to begin with. This is not only a rule in law, but ordinary common sense. Needless to say, the nemo plus juris rule in the South African context forms a foundational element in Libertarian Legal Theory.
In light of this, what is Libertarian Legal Theory’s position on democracy? In my opinion, it has none. ‘Democracy’ has become a nice buzzword in legal-political speak over the past century, and almost by default implies ‘a good system’. However, as I said above, Libertarian Legal Theory, and arguably libertarianism itself, concerns itself with initiatory State force. How the State is elected or composed is irrelevant. Where democracy does become relevant is when the citizenry attempt to transfer rights, entitlements and obligations which they themselves do not possess, to others (usually the State). The nemo plus juris rule logically precludes citizens from empowering the State to initiate force against fellow citizens or foreigners.
My endorsement of some common law principles above should not mislead you to believe that the South African common law is libertarian in nature. While our ‘Roman-Dutch’ common law does have distinctively libertarian features, as Professor John Dugard has written, and while it is certainly more libertarian than our Constitution and statutory law, it is certainly not by itself libertarian. This is why I believe Libertarian Legal Theory should be a legal approach in and of itself, with common sense influences, where compatible, from the common law.
In summary, Libertarian Legal Theory is an evolution from the (classical) liberal theories of law which were observed in the United States, and to an extent in the United Kingdom, before and in the early parts of the twentieth century. South Africa, unfortunately, has no such history and has arguably always had a very collectivistic and statocentric approach to law. The principles underlying Libertarian Legal Theory are self-ownership, informed consent and nemo plus juris. The non-aggression principle is the foundational principle of libertarianism as a whole and overarches Libertarian Legal Theory. These principles, when there is uncertainty, can find application by relying on common law methods and rules which have developed over the centuries.
I invite any lawyers, law students or others knowledgeable in the law to contribute to my project to write a comprehensive analysis (or formulation?) of Libertarian Legal Theory from the South African legal perspective. Libertarian Legal Theory has only to an extent been developed in the Anglo-American common law, and I believe there is intellectual value in translating it into the Roman-Dutch tradition.