The Ethics of Liberty by Murray Rothbard is an essential read for all libertarians. Personally it was my first full-length book of Rothbard’s, and it lead me to his other works. And while I do view many of my stand-points as Rothbardian, there are a few positions that I do not agree with him on. In The Ethics of Liberty, I take issue with his treatment of maximal force and Wergild. It is the former topic that will be explored here, which may be found on pages 80-81.

To begin, Rothbard rightly frames violent defence of property as being the remedy against rights-invasions. Such an invasion must be clear, present, and imminent. A nasty face or bad word is not sufficient for the use of force in this scenario. Taken from The Ethics of Liberty:

 The danger must be immediate and overt, we might say, “clear and present”-a criterion that properly applies not to restrictions on freedom of speech (never permissible, if we regard such freedom as a subset of the rights of person and property) but to the right to take coercive action against a supposedly imminent invader.

Most libertarians would likely agree with this assessment. My own contention applies to his take on the maximal use of force in self-defence, which he applies to an example of theft. Now before going into the example, we need to define a few ideas related to self-defence. Maximal force refers to the usage of a maximum amount of force in defence. Force proportionality refers to the use of a force continuum, where the operator is using a specific level of force as a response to his attacker’s choices. Equal force refers to the use of force by an operator that directly matches the force of his attacker. The two latter positions are distinctly different, though closely aligned to each other. Onto Rothbard’s example:

…must we go along with those libertarians who claim that a storekeeper has the right to kill a lad as punishment for snatching a piece of his bubble gum? What we might call the “maximalist” position goes as follows: by stealing the bubble gum, the urchin puts himself outside the law. He demonstrates by his action that he does not hold or respect the correct theory of property rights. Therefore, he loses all of his rights, and the storekeeper is within his rights to kill the lad in retaliation. I propose that this position suffers from a grotesque lack of proportion. By concentrating on the storekeeper’s right to his bubble gum, it totally ignores another highly precious property-right: every man’s including the urchin’s- right of self-ownership. On what basis must we hold that a minuscule invasion of another’s property lays one forfeit to the total loss of one’s own? I propose another fundamental rule regarding crime: the criminal, or invader, loses his own right to the extent that he has deprived another man of his.

Rothbard is clearly using a rather extreme example to undermine the maximalist position. But even in this example, the maximalist position has its merits if we break down the example. If the owner kills the thief, it is the only position that guarantees recovery of stolen goods, since the dead cannot steal. If the owner draws a weapon to arrest the thief, this is clearly an increase in the use of force against the criminal. Do we then say that the store owner is now the criminal for now threatening the safety and health of the thief? Even if there is no weapon involved, subduing an opposing threat could lead to the injuring of either or both parties. Do we then say that the store owner is at fault, for he injured a thief?

The maximalist position covers the store owner in the variables above. If the unarmed owner increases the use of force to arrest the thief, then he may retrieve his stolen good and earn interest on the offence by wounding the criminal. If the armed owner does this, then the result is the same: retrieval of goods and retribution. How could Rothbard disagree with this, whilst also supporting retribution as justice? Or as Hans-Hermann Hoppe writes in the introduction:

Rothbard presented a rigorous modern defense of the traditional proportionality principle of punishment as contained in the lex talionis-of an eye for an eye, or rather, as he would correctively explain, two eyes for an eye.

Rothbard goes on to say:

If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights.  From this principle immediately derives the proportionality theory of punishment-best summed up in the old adage: “let the punishment fit the crime”

We conclude that the shop keeper’s shooting of the erring lad went beyond this proportionate loss of rights, to wounding or killing the criminal; this going beyond is in itself an invasion of the property right in his own person of the bubble gum thief. In fact, the storekeeper has become a far greater criminal than the thief, for he has killed or wounded his victim-a far graver invasion of another’s rights than the original shoplifting.

In the above quotation, Rothbard says that the punishment must fit the crime. And yet, who is the one who evaluates when the proportionate loss of rights is overstepped? If the store owner subjectively values his good(s) at a certain price, when does the price of the good(s) allow him to use deadly force or its threat to stop the thief? Is there such a price? What if the store owner values the sanctity of his property, his livelihood, more than the life of the thief and then acts accordingly? What if the thief does not value property whatsoever? Summed up: Who judges the extent of loss that the thief deprives the owner if all values are subjectively ascertained?

I would answer that such a question could not be consistently addressed. For consistency, the original and only victim would be the one protected. Hence it would be more prudent, more virtuous, if the original victim is the sole victim. If this is not true and the store owner advances up the continuum of force against the thief, then he becomes the criminal and the thief the victim. Such a position can hardly be called just at all. On the other hand, the maximal position ensures that the store owner (original victim) is secure in his right to property instead of attempting to protect the criminal (the thief).

There is one other important consideration not elaborated upon in Rothbard’s book. When a clear and present threat is made, there is no precise way for either party to truly know if the threat will lead to death or not. Put another way, all threats are potentially life-threatening in nature. Let’s elaborate on this using an example of our own. Man A threatens to strike Man B in the face. No other information is required to judge this situation from the maximal position: Man B is permitted to use lethal force in his own defence if he so desires. If we use the proportional force position, then Man B must wait for Man A to actually attack before responding. If he fails to defend himself, he may be injured or killed, even if Man A doesn’t actually intend to kill Man B. If we use the equal force position, then Man B must use his hands to defend his person; self-defence is restricted to pugilism. Both of these positions, proportionality and equality, fail to protect the following people: the weak, the small, the infirm, the elderly, and women. This is general and does not account for special training, but it is valid nonetheless; such positions do not protect those who are most at risk by the strong. Unfortunately Rothbard doesn’t address this in The Ethics of Liberty.

My position is clear and easy to understand. If you invade the rights of others, you cannot expect your rights to be protected. If you steal, then you put yourself at the mercy of your victim. If you assault, then you have to hope your victim isn’t carrying. So the law of the talon goes; retribution upheld for all.