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The Inadequacy of “Noninitiation of Force”
As The Foundation For Libertarianism

We are all familiar with the slogan that libertarians are not opposed to force, only to the initiation of force, but what is “initiation of force” and what is “retaliatory force” depends on who has the legitimate or proper right to particular properties. You can’t be trespassing on my land unless it is first established that the land in question really IS my land. You can’t be stealing my watch unless the watch in question is my property. Thus, the theorist attempting to “ground” libertarianism in morality cannot stop short at an artificial distinction between initiatory vs. retaliatory force without having previously resolved the issue of the origin of “proper” or “justifiable” property claims.

The standard contemporary libertarian answer to the ethical issue of what property claims are justifiable and what property claims are not justifiable is derived from John Locke’s Second Treatise On Government, published circa 1689. Originally, or in the “state of nature,” Locke tells us, men lived in a state of relative abundance. They could satisfy their needs and wants, such as they were, by as little effort as gathering acorns from under the tree on which these acorns grew and from which they had fallen. By “mixing his labor with these “free gifts of nature” in a condition where there was “as much and as good left for others” individuals created a moral claim to private exclusive property [i.e., in this case, the right to possess and decide on the disposition and use of the acorns they had gathered].

While we are no longer in a “state of nature and abundance ” with respect to many goods today, the complementary principle is that these “legitimate first claimants” could pass title to the property they had rightfully acquired/appropriated to successor individuals, through gift or voluntary exchange, and that such legitimately transferred property could be used to create new property, etc. According to this Lockian theory of the origin of legitimate property claims, then, legitimate property in any society, is property that is descended from property held by “first claimants” through exchange or gift, without any intervening acts of force or fraud. Any break in this chain of legitimate descent requires redistribution as a matter of justice and to restore legitimacy in property holdings. If, for instance, I should buy an antique pocket watch from a dealer in such goods, and it was subsequently shown that this same pocket watch was stolen from your great great grandfather [of whom you are the only surviving heir], then your property claim to the pocket watch is superior to mine and I must hand the watch over to you, while, presumably, demanding my money back from the dealer from whom I purchased the watch.

This consequence of the Lockian theory of morally based property rights is, of course, exactly where the facial appeal of the non-initiation principle breaks down. For history teaches that there are likely no such “legitimate” properties or property claims in modern societies – or, if there are, such property and such property claims cannot, in practice, be distinguished from illegitimate property or property claims. A theory that was created to distinguish between legitimate and illegitimate property claims thus results in the conclusion that all property claims are of, at best, questionable validity. Such a theory must be rejected, since it debases the very distinction that it was proffered to support.

The fundamental factual problem with this Lockian approach to property rights is, of course, that it rests the legitimacy of property rights and property claims upon remote history, and most intervening history has been rabidly nonlibertarian. Historically, transfers of property between tribes and nations [and their respective "citizens"] have typically taken place by force, not by trade or gift. It has only been in the last 200 years, and only in limited parts of the world, that market exchange has been the rule between societies, rather than the exception. Yet we know that the “state of nature” ceased to exist in most parts of the world long before the last 200 years. Hence, the “non-initiation principle” fails at its conclusion and, derivatively at its premises, since it provides no workable basis for distinguishing between “what is mine” and “what is thine” and thus, by implication, provides no basis for the distinction between initiatory and retaliatory or retributive force.[That is, since what is legally thine may be actually mine - due to some instance of historical theft from one of my ancestors - there is thus no moral basis for legal sanctions against my reclaiming my property by force, particularly if you refuse to voluntarily turn it over to me.]

This basic inadequacy of the non-initiation principle should be evident to any libertarian who has tried to argue for his views with those of radically different ideologies and views of the world. The Marxian socialist, for instance, would completely agree with a principle prohibiting force and fraud in private dealings concerning legitimate property. His problem with drawing libertarian conclusions for present day societies from such a principle is, however, that he can point to many historical instances of the use of force or fraud to accumulate property and his economic theory tells him that the existence of concentrations of capital [i.e., machines, buildings and other "means of production"] in the hands of “a few” nonworkers is per se evidence of force and fraud in the historical relations between those who work to create such capital [the multitude of laborers] and those “few” whose descendents now hold title to such capital [capitalists]. For the Marxist, this purported historical illegitimacy in the way that capital was acquired invalidates current legal titles to such capital and requires, in order to restore property to its legitimate owners – “the workers” who created it or their descendents – the redistribution of existing capital. Hence, the same philosophy of property rights that justifies
libertarianism, when associated with a Lockian myth of the golden age of abundance in the state of nature, justifies, with different associated assumptions, the workers’ revolution against capitalism.

It is also notable that no modern legal system adopts the Lockian theory of legitimate property claims. The most popular current paradigms for determining “legitimate” property titles are either (1) a centralized depository of titles and title transfers dating from some arbitrary starting date [a system which is typical of the way that land titles are established in most Anglo-American nations] or (2) the “bona fide purchaser for value” principle, when there is, for economic reasons, no depository of titles.

The former principle is self explanatory. Legitimate property claims are those that existed, for instance, on the date of the Norman Conquest as recorded in the Doomsday Books.

The latter principle, the “bfp principle,” explicitly cuts off historical claims to property when the property is acquired for “reasonable value” in a circumstance free of apparent fraud. If the third generation descendent of the “original and true owner” of the property subsequently appears and makes a plea for its return, his plea is dismissed and his remedy is against the thief or defrauder who illicitly obtained the property from his ancestor.

There is no contention underlying either of these theories of property that the property claims that arise under them are somehow morally based, but each theory is largely workable and creates a more or less stable system of property rights. The Lockian theory does the opposite. Claiming to supply a morally based theory of property rights, what it in fact does is create a rationale for perpetual social upheaval. Of course, in practice, the Lockian theory often appears to be a conservative theory, since its advocates have a rather schizophrenic approach to its application. While it is fairly easy to demonstrate that the LEGALLY RECOGNIZED property claims in most modern societies do not meet the Lockian test for legitimate property claims, since they are tainted by widespread historical force or fraud, the advocates of a purported Lockian/moral theory of property rights simply ignore such evidence and pretend as if LEGAL property rights are legitimate. Whereas the Lockian theory, consistently applied, would result in the necessary conclusion that either massive redistribution of property is required to restore justice or that the legitimacy of all property rights are in such confusion and question that all property rights should be abolished in favor of a new “free for all” redistribution, the purported Lockian, when confronted with claims for massive redistribution of property claims that arise from the apparent basis of the Lockian principle, rapidly retreat into legal conservatism and claim that the real principal underlying property rights is social stability and prosperity, not Lockian justice.

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WHAT IS LIBERTARIANISM?

Somehow, since those dim days in the 60s when former classical liberals and traditional Americans were looking for a new label to describe their political outlook,
we have lost our way. We have lost our way, I believe, partly because the original vision was never crystal clear. It was distorted, at the beginning, by what Hayek once called “Individualism: True and False.” But it also has become more distorted over time by the success, such as it is, of the “libertarian ideology.” A popular ideology is one that people want to associate themselves with, no matter how different their own views may be.

So the purpose of this little essay is simple. It is to “set the record straight.” It is not to establish a “bright line,” not to establish a new dogma, for there are always grays at the margin, but it is to say something about what libertarians must, at a minimum, believe if they are, in fact, libertarians.

First of all, libertarians acknowledge that society is bigger than a political ideology, or, at least, it should be. A society is the many many ways that peaceable human beings interact with one another for what they believe to be their mutual benefit. There is no “political issue” in a society, qua society, since a society is simply about peaceable and voluntary interactions between individuals. Some of these interactions may turn out to be in fact mutually beneficial, some will not, but they are all initially voluntary and peaceable.

As opposed to voluntary and peaceable interactions, government is essentially about coercive force. It is the agency or institutionalization of approved or sanctioned coercive force. Now since coercive force is antithetical to peaceable and voluntary social interaction, the use of government in a society is, or should be, a last resort. Government may be useful (or it may not be) to suppress those individuals who are themselves persistently violent in their dealings with other persons. It may be useful in thwarting a military invasion of a society by a different, aggressive and hostile society. But it is never useful in promoting “good morals” or “spreading freedom” or any of the other fine sounding goals that we may desire for our society and others, but which we cannot effectively promote through the use of coercive force.

The foregoing is libertarianism. That is all there is to libertarianism – this distinction between society and government, and the associated understanding of what government is suited to accomplish and not suited to accomplish. Libertarianism is not about having a “free spirit,” or thinking independently or asserting that “people have rights,” although all those things may be good things in themselves. Libertarianism is simply about a fundamental understanding of the nature of society and the nature of government. If you have and consistently apply this understanding then you are a libertarian, regardless of your other views on other topics. If you have views contradictory to that core understanding, then you are not a libertarian.