Below is a public response, written by my friend jabial, to Against Libertarian Legalism by Frank van Dun. It was also published in French on the online magazine Contrepoints. See also this citation in the Libertarian Standard.
Answering Van Dun's Objections Against the Classical Libertarian Interpretation of the Non-Agression Principle
Nowadays, you get to see all brands and shapes of libertarians. From Ayn Rand's philosophical circle whose complete membership could originally meet inside a small restaurant and then grew and grew until it needed to book several conference rooms, the modern libertarian approach was born of Murray Rothbard's schism from what had turned, because of all too human tropisms, into the church of capitalism, an organization where the word of one said in anger could and would settle debates that should have been ruled by the very reason it claimed to promote. So it is not surprising that the history of the libertarian movement itself is full of diverging opinions and groups who excommunicate one another; this variety is healthy and is the mark of a political movement that is alive and well. When people disagree, at least one of them is wrong. People who are looking for truth and justice, not power, may work towards a common goal but they don't congratulate one another on their disagreements; they fight on them as if their lives hanged on the balance and, indeed, maybe our future does. I am going to continue this tradition by violently disagreeing with Frank Van Dun, because I think his positions are dangerous for us all as they undermine the whole libertarian theory of law framework which is the foundation upon everything else rests.
Frank Van Dun is a senior lecturer in philosophy of law at the University of Ghent, Belgium. Outside his own followership, he is most well-known in the libertarian circles for his Against Libertarian Legalism paper, which is what I am going to respond to. In that paper, he attacks the classical interpretation of the non-aggression principle, and then goes on to dispute Kinsella and Block's positions on several everyday life issues, thereby proving and illustrating that the Van Dun libertarian world is very different from the one we are fighting for.
The damage is done as soon as he denounces the classical interpretation of the non-aggression principle. The non-aggression principle has an enormous advantage that is not discussed in Van Dun's paper: it is objective. For Van Dun, the non-aggression principle is "praxeological", which means in practice that it is contextual rather than objective. Of course this poses a very serious problem: then the judge has discretion to appreciate what is a natural right and what is not. In a classical libertarian world, a judge has only to decide whether somebody violated somebody else's right or not. Since those rights are defined as extended property rights, it is also objective whether one such right exists or not. Of course, granting so little leeway to judges tend to worry jurists, who then think: "but then anybody could do it ?", which is of course false: designing a bridge is a very objective process but I wouldn't give that task to just anybody who can add up. Some even go as far as saying that in that case computers could do the job, which is even more ridiculous. For many libertarian jurists, the judges is an arbiter that has no particular rule to conform to: if he judges wrong then he'll soon have no job in the free market of justice. Of course this kind of regime would stop respecting property rights even faster than democracy did. If a respectable judge that has a clean track record suddenly sentences a woman to be stoned for adultery, of course the sentence is neither enforceable nor merely a bad judgement — this is an attempted murder that must be judged as such in another court. This extreme example is just illustrative of a general principle: a judge is not sovereign, and a court ruling must itself be lawful. It too must obey natural law or be null and void. Natural rights are a fact, not a matter of contextual interpretation. Denying that it is so means renouncing the very idea that we have any natural right at all, and simply trusting judges to be enlightened despots. History showed how well that works.
After poisoning the non-aggression principle, Van Dun applies his logic to three classical libertarian issues: trademarks, libel and employment contracts. Of course destroying the foundational principle of libertarian theory of law allows him the dream of all judges: to arbitrate for whatever he thinks is fairest, and that is just what he does. And indeed this confusion of justice with fairness is very dangerous. In the matter of trademarks, I cannot believe that one could make in bona fide the argument that if you contract to buy an R-brand burger and get delivered an L-brand burger, then you have not been defrauded if R company does not own a right on its trademark. Let us then consider the case where a trademark has fallen into the public domain. For Stradivarius violins, it certainly did for a very long time. Van Dun's argument is essentially that if there is no firm to claim the trademark, then I cannot sue if I bought a perfectly imitated counterfeit one. Of course that is not the case, and the argument crumbles on itself: the consumer's right to get what he actually paid for is clearly enough to ensure that such swindles will not take place while avoiding the present-day abuse on trademarks. Van Dun says that unlike patents, there is no abuse on trademarks. I beg to differ. In several developed countries it is possible for a big company to register something that a smaller company is already using and then force them to abandon it. Then there is the case of the poor man's Rolex. If a person knowingly buys a counterfeit luxury item for a few dollars, whose right is he violating? Of course registered trademarks violate natural rights here and now. For the sake of his argument, Van Dun extends at nauseam the concept of caveat emptor, thereby managing the feat of defending a firm's right to its identity while throwing good faith out of the window. It is clear that both forged signatures and counterfeit quality control labels are acts of lying while making a contract, thus violating the precontractual obligation of good faith. Van Dun is here committing sophism at worst, paralogism at best: good faith is necessary both in the classical libertarian framework and in the trademarks framework. Making trademarks a prerequisite for good faith is, indeed, putting the cart before the horse. The converse is true, and, of course, good faith is enough in the classical libertarian framework to protect the consumer.
Van Dun's argument against libel is interesting because, unlike on the preceding and following issues, he is not wrong through and through. It is one thing to simply accuse somebody of something before the court of public opinion. This is part of the liberty of expression which should never, ever be limited. Simply studying the court records shows well enough that the libel laws benefit the powerful and the rich, who can use legions of lawyers to gag the truth about their vices, which are all the more a public matter when they are in position to influence our lives. However, it is quite another thing to give a sworn affidavit that is false. Testimony is one of the pillars of the police and justice system, and a false witness will indeed have direct consequences on somebody's liberty and property. For that reason, it is Block himself that must be declared deviant from the classical rothbardian position, which holds that a judge that condemns unjustly must suffer the very sentence he pronounced; if the injustice rests not in the judge's hands but the witness', then it stands to reason that he, and not the judge, must suffer that fate. However, unfortunately his pursuit of fairness throws Van Dun again off the road, and he goes on to say that a man has a right to confront in a court of law anybody who accused him in the court of public opinion, as long as he suffered damages. Of course this cannot be allowed to stand: if a competitor opens a shop next to mine, I will suffer damages but that does not give me a right to confront him before a court of law, even if it is just so the truth can be established, which in real life is not the case as the penalty for public libel can go as far as prison, unless of course you are a state-accredited journalist. This creates a caste of the privileged who can share their suspicions without formal proofs, while the regular people cannot. This is even more true in Europe where Van Dun and I live. In your opinion, where is the truth more likely to emerge: in a place where everybody can speak their ideas, or in a place where people can get gag orders on one another? The market of opinions must be allowed to stay free, even when an opinion can be very unpleasant. It is not that different from the case on blasphemy, which shocks many to the point of what looks like temporary raving madness. Indeed, for the first time in nearly 200 years, developed countries have re-enacted blasphemy laws.
It is the section on employment contracts, however, that is probably the worse of Van Dun's paper. Indeed, it is apparent that he tries very hard to justify the European view on employment contracts, that is, that one owns one's job. This accusation may seem exaggerated, but bear with me. In the very first paragraph, Van Dun, after Block uses the word "blackmail" to describe the attempt of an employer to have his secretary sleep with him. In the classical libertarian framework, as developed by Rothbard, unlawful blackmail can only be defined as threatening somebody with violating his rights unless he does something you want. Now, if you threaten somebody with not giving her a gift unless she puts out, well, this is not blackmail, because she has no right to demand a gift from you, just as you have no right to demand sex from her. However utterly disgusting the attitude of somebody who tries to get sex that that way, it does not fit the classical libertarian definition of unlawful blackmail in any way, shape or form. Moreover, choosing sex as an example like Block did is like making a rod to beat your own back. This creates an appeal to emotion, and it is very difficult to reason evenly while being angry and disgusted. For most people, doing so requires actual training. Likewise, you have to take into account that the case is going to elicit the same reaction in others. In a way this is very similar to defending the repeal of anti-racist gag laws. Try that in a Jewish community sometime. Nearly all females and most males in the general population will stop reading at this point and just think "what a bastard". Block did a disservice to the community by choosing such a loaded example, as well as a mistake by confusing under the terms blackmail and libel both lawful (though distasteful) and unlawful activities. Van Dun prolongs these mistakes. However, when reformulating the problem in a dispassionate way, the real question here is "can you fire an employee for a bad reason", which amounts to "do people own their jobs", because if you look from the other side of the window, employees can sure leave their jobs for bad reasons.
An employment contract can be seen in two very different ways. You can see it as a service contract between equals, or you can see it as an act of submission to a master. In the second case, tradition dictates that a master has a responsibility to his servants, like some kind of surrogate father to people who are children for life. Not just the socialists see the employment contract as some kind of modern slavery; many employers do too, so this state of affairs is just as much their fault. However, in a libertarian setting it is clear that the first point of view is the only one that can be considered. This is where the sex comparison comes back to bite Frank Van Dun: if, like sex, work is a voluntary relationship between equals, then, as in sex, either partner must be able to end it immediately for any good or bad reason, or else it becomes a disgusting twisted parody of its voluntary counterpart. In case of sex it is called rape. If a worker is forced to keep actually working against his will even for a minute it is called slavery. And whenever an employer must keep an employee one minute more than he wants to, he no longer owns his shop or factory or office.
It is quite paradoxical that Van Dun calls the classical libertarian situation a lawyer's paradise because you actually have to pay attention to what you sign; indeed, the real lawyer's paradise is the system where natural rights are defined by what the judge deems fairest, and the best arguer wins. Now, of course I am not arguing that employment contracts cannot contain penalties for breaching them. As any contracts, they may contain any voluntary stipulation. On the other hand, what Van Dun argues is that any employment contract implicitly contains such provisions. However, implicit stipulations are determined in accordance to custom. This idea of an implicit obligation to only fire for cause may be true in Europe, where a job is considered by many to be an office one "buys into" by submitting to an exam, which is indeed what actually happens in the big and growing part of the labor force that is composed of public servants. However, this "custom" is heavily slanted by the heavy regulation of labour contracts. Indeed, it is forbidden by law and thus the use of force to put "anything goes" into an employment contract, so existing contracts cannot be taken as an example of a free-market. The protection of the weaker party has gone so far that nowadays in Europe, even small suppliers who are companies themselves are protected by similar provisions of law, requiring their client to give them time before breaking a contract, with little or no regard for what is actually stipulated in it. And in most part of the world, the custom in force is that, indeed, "anything goes". Can a doctrine that goes as far as to endorse the social-democrat model of the employment contract, with its corollary, the vicious circle of labour protection generating unemployment which itself generates more labour protection, still be called libertarian? Some conservatives are more libertarian than that.
So let us go back to the original case study. What would happen in a libertarian world? Well, the secretary would leave her employment and find another within a day, as was the case in all free market economies that ever existed; as for the employer, since he would not be protected against "libel" as he is today, he would very soon get a very bad reputation. If he is not the owner of his business, he would probably be fired himself after one or two such incidents. If he is, he would be forced to pay premiums to keep even an inferior workforce, and in a free market that kind of competitive disadvantage probably means bankruptcy.
As expected, I conclude by saying that Frank Van Dun holds unlibertarian positions in a variety of issues. Even worse, since he is a university lecturer with a reputation for libertarianism, he is attracting libertarian-minded students of law who he is feeding something that is not the real deal, and that will most likely come back to haunt us when some of those students become a part of the libertarian world themselves. So I think we should make an effort at warning people that his vision of libertarianism is very personal and quite slanted with European philosophy of law.