[…] value is objective (not intrinsic or subjective); value is based on and derives from the facts of reality (it does not derive from mystic authority or from whim, personal or social). Reality, we hold — along with the decision to remain in it, i.e., to stay alive — dictates and demands an entire code of values. Unlike the lower species, man does not pursue the proper values automatically; he must discover and choose them; but this does not imply subjectivism. Every proper value-judgment is the identification of a fact: a given object or action advances man’s life (it is good): or it threatens man’s life (it is bad or an evil). The good, therefore, is a species of the true; it is a form of recognizing reality. The evil is a species of the false; it is a form of contradicting reality. Or: values are a type of facts; they are facts considered in relation to the choice to live.

[…]

Existentially, an action of man […] is good or bad according to its effects: its effects, positive or negative, on man’s life. Thus creating a skyscraper is good, murdering the architect is bad — both by the standard of life. But human action is not merely physical motion; it is a product of a man’s ideas and value-judgments, true or false, which themselves derive from a certain kind of mental cause; ultimately, from thought or from evasion. […] The skyscraper’s creator […] functioned on the basis of proper value-judgments and true ideas, including a complex specialized knowledge; so he must have expended mental effort, focus, work; so one praises him morally and admires him. But the murderer […] acted on ideas and value-judgments that defy reality; so he must have evaded and practiced whim-worship; so one condemns him morally and despises him.

—Leonard Peikoff¹

This document is part of a course which you can find here. I provide the textual version for free to the public to make people aware of the facts contained within and to (hopefully) convince people to purchase the video course. This course is intended primarily as a video experience, and that is where my focus will be in terms of quality, so I do encourage you to check it out if this content is at all interesting to you. The course is sold on a pay-what-you-want model and is copyleft, meaning other people have the right to re-publish it at will. I simply encourage anyone who appreciates the work put into this course to purchase it such that I may make more in the future, and if you do choose to republish any section, please credit me and extend to your audience my request to purchase.

Against the Separation of Ethics and Law

In the preparation for and the writing of this course I have encountered a strange tendency wherein the claim that “people ought not violate the rights of others” is apparently a controversial one even among Austrians. This is indicative of a severe problem in Austro-Libertarian circles that deserves a dedicated section of the course to properly address. The root of the problem is that many reject the core defnition of law as a subset of ethics, claiming instead that there is such a thing as a virtuous crime. The paragon example would be a man who is about to commit suicide by jumping off of a cliff, and the only way to save this man is to violate his rights by grabbing him and dragging him away from the cliffs edge. These contextualist-libertarians would have it that whether a crime is immoral or not depends on extra-legal context.

I believe much of the confusion on this topic stems from the fact that many libertarians (at least appear to be) somewhat inconsistent, at some points indicating that law is indeed a subset of ethics and at other points rejecting this position. Rothbard explicitly states in his work on pollution that “law is a subset of ethics,”² and “a set of ‘ought’ or normative propositions,” but his discussion of “lifeboat scenarios” in The Ethics of Liberty is commonly cited to negate this point. Rothbard presents the conundrum as follows:³

It is often contended that the existence of extreme, or “lifeboat,” situations disproves any theory of absolute property rights, or indeed of any absolute rights of self-ownership whatsoever. It is claimed that since any theory of individual rights seems to break down or works unsatisfactorily in such fortunately rare situations, therefore there can be no concept of inviolable rights at all. In a typical lifeboat situation, there are, let us say, eight places in a lifeboat putting out from a sinking ship, and there are more than eight people wishing to be saved. Who then is to decide who should be saved and who should die?

On its face, this appears to not present any serious problem to the theory presented in this course—the fact that the truth of the matter is unsatisfactory or makes someone upset or look like a bad guy for presenting it does not constitute a refutation of said truth. Indeed, to warp ones ethics to suit ones intuitions such that any “unsatisfactory” results are purged would be to surrender oneself to accepting the mystic power of whim to grant truth, thus tainting an otherwise sound epistemology.⁴ Thus I shall proceed with the analysis without caring about how nasty-sounding the conclusion reached may be. In the first place we have a scarcity, only 8 spots in the lifeboat and more than 8 people, thus property rights must be assigned. Presumably this lifeboat did not materialise in nature and was instead built by or purchased by whomever owns the boat, thus it is he who has the right to say who gets a spot. Perhaps he makes a rule that women and children go first, perhaps he decides that crewmates get priority over customers, and so on. Whatever arbitrary rules he sets ought be abided.

Now what of the situation where the owner set no rules forth and has died abandoning the lifeboat into the domain of nature? We surely already have our solution in the homesteading principle—first come first served. If you get to a spot in the lifeboat you are thus using said spot and thus get to dictate how it is to be used (presumably you would want it to be used to save yourself). This might be horribly unfair to those who are slower or started further away from the lifeboat, but tough luck! Life isn’t fair and neither is law—the prime goal of law is justice not fairness. What, after all, would be the alternative? That people who are slower to get to the boat (i.e. latecomers) are the ones who should get a spot? Well then the people they kick out could just immediately return to the boat as an even later-comer, thus entering us into an endless dance of groups getting in and out of the boat—everyone would be equal but everyone would be dead. It seems that Rothbard came to the same conclusion:

If the owner of the boat or his representative (e. g. the captain of the ship) has died in the wreck, and if he has not laid down known rules in advance of the wreck for allocation of seats in such a crisis, then the lifeboat may be considered–at least temporarily for the emergency–abandoned and therefore unowned. At this point, our rules for unowned property come into play: namely, that unowned resources become the property of the first people possessing them. In short, the first eight people to reach the boat are, in our theory, the proper “owners” and users of the boat. Anyone who throws them out of the boat then commits an act of aggression in violating the property right of the “homesteader” he throws out of the boat. After he returns to shore, then, the aggressor becomes liable for prosecution for his act of violation of property right (as well, perhaps, for murder of the person he ejected from the boat).

Rothbard continues with the following:

In the first place, a lifeboat situation is hardly a valid test of a theory of rights, or of any moral theory whatsoever. Problems of a moral theory in such an extreme situation do not invalidate a theory for normal situations. In any sphere of moral theory, we are trying to frame an ethic for man, based on his nature and the nature of the world-and this precisely means for normal nature, for the way life usually is, and not for rare and abnormal situations. It is a wise maxim of the law, for precisely this reason, that “hard cases make bad law.” We are trying to frame an ethic for the way men generally live in the world; we are not, after all, interested in framing an ethic that focuses on situations that are rare, extreme, and not generally encountered.

Let us take an example, to illustrate our point, outside the sphere of property rights or rights in general, and within the sphere of ordinary ethical values. Most people would concede the principle that “it is ethical for a parent to save his child from drowning.” But, then, our lifeboat skeptic could arise and hurl this challenge: “Aha, but suppose that two of your children are drowning and you can save only one. Which child would you choose? And doesn’t the fact that you would have to let one child die negate the very moral principle that you should save your drowning child?” I doubt whether many ethicists would throw over the moral desirability or principle of saving one’s child because it could not be fully applied in such a “lifeboat” situation. Yet why should the lifeboat case be different in the sphere of rights?

The response here indicates that there are at least two different spheres of ethics, one for normal situations and one for abnormal ones. It is not clear, however, how on Earth it could be possible to make a non-arbitrary distinction between “normal” and “abnormal” ethical conundrums. Moreover, if such a principled distinction cannot be made between normal and abnormal such a theory would be particularistic and thus irrational. That is to say, there are certainly many differences one could use to define normal as opposed to abnormal; say that situations where red shirts are worn are abnormal and where red shirts are not worn the situation is normal. That would be a difference, but the difference is not relevant to ethical theory—thus a rational norm must apply to both classes of situations in order to be universal as opposed to particular. Until such a principled difference can be found to define normal as opposed to abnormal we are stuck with universal norms having to apply to both classes and thus there are not two “spheres” of moral theory. That is to say; it couldn’t be the case that property rights hold “normally” but not “abnormally,” as such would be a particularistic property norm, and thus an irrational one.

I must now consider Rothbards drowning children hypothetical, in the case of the single child it is assumed that the parent can save them, and in the case of two children it is assumed that only one can be saved. There are indeed certain similarities between the drowning children and the lifeboat—for the case of two children one will die and one will live, for the lifeboat 8 will live and others will die. The question is how to determine who should live and who should die. We have our solution in the case of the lifeboat, and it strikes me that this course provides a similar ability to answer the drowning children example. The mother cannot physically save both, thus it is surely a matter of personal preference which one she saves, and why should she be expected to act any differently? It would be logically impossible for her to pick the one she would prefer not to save, and thus the only alternative would be to let both drown. Surely we can easily sum this up in a universal principle—guardians ought save their children from drowning insofar as they have the ability to. It is not my claim that this principle has been proven, after all this is a law course not a course on ethics in general, but I cannot see how this would not be universal and it certainly seems that it easily deals with Rothbards hypothetical opponent.

Rothbard seemingly goes forth with his multi-sphere model (emphasis added):

It may well be objected to our theory as follows: that a theory of property rights or even of self-ownership is derivable from the conditions by which man survives and flourishes in this world, and that therefore in this kind of extreme situation, where a man is faced with the choice of either saving himself or violating the property rights of the lifeboat owner (or, in the above example, of the “homesteader” in the boat), it is then ridiculous to expect him to surrender his life on behalf of the abstract principle of property rights. Because of this kind of consideration, many libertarians who otherwise believe in property rights gravely weaken them on behalf of the “contextualist” contention that, given a choice between his life and aggressing against someone else’s property or even life, it is moral for him to commit the aggression and that therefore in such a situation, these property rights cease to exist. The error here on the part of the “contextualist” libertarians is to confuse the question of the moral course of action for the person in such a tragic situation with the totally separate question of whether or not his seizing of lifeboat or plank space by force constitutes an invasion of someone else’s property right. For we are not, in constructing a theory of liberty and property, i.e., a “political” ethic, concerned with all personal moral principles. We are not herewith concerned whether it is moral or immoral for someone to lie, to be a good person, to develop his faculties, or be kind or mean to his neighbors. We are concerned, in this sort of discussion, solely with such “political ethical” questions as the proper role of violence, the sphere of rights, or the definitions of criminality and aggression. Whether or not it is moral or immoral for “Smith”–the fellow excluded by the owner from the plank or the lifeboat–to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics.

On a first glance, it would seem that Rothbard is adopting a dichotomy between law and ethics, and this very passage has been cited to me numerous times to that effect. But to my eye that is only one of multiple valid interpretations of Rothbards writing here—it appears to me that he is merely hedging his bets in ignoring the questions of ethics as a whole and focusing in on the area that he has expertise in. This highlights why Rothbard saw fit to analogise the lifeboat scenario to “ordinary ethical values;” if law was not a subset of ethics, i.e. if it did not deal with “ought” statements such an analogy would be incoherent. Furthermore, Rothbard is correct that “we are not, in constructing a theory of liberty and property […] concerned with all personal moral principles,” we are rather only concerned with those moral principles that pertain to conflicts over scarce means. This does not, as the critics claim, demonstrate that law and ethics are disconnected fields. Clearly, if we are concerned with a subset of all moral principles which deals specifically with conflicts in doing law then law itself is a subset of morality in general. This analysis is also consistent with Rothbards claim that “[w]hether or not it is moral or immoral for ‘Smith’–the fellow excluded by the owner from the plank or the lifeboat–to force someone else out of the lifeboat, or whether he should die heroically instead, is not our concern, and not the proper concern of a theory of political ethics.” It very much appears to me that Rothbard is merely leaving the floor open for his legal theory to be compatible with any outside ethical theory that one may come up with—even one that would allow for contradictions between “personal” and “political” ethics. Of course, such a theory would be false, but that is not the concern of Rothbard qua legal theorist. This becomes clear in a footnote attached to the end of the above paragraph, commenting on an example where two men are floating in the water and there is a plank that can save only one of them:

Eric Mack’s example fails to show a necessary conflict between property rights and moral principles. The conflict in his example is between property rights and the dictates of prudence or self-interest. But the latter is only dominant in morality if one adopts moral egoism, which indeed Professor Mack does, but which is only one possible moral theory.

This makes it abundantly clear to me that Rothbard is, as I claim, simply trying to make his ethic as narrow as possible such that it may be slotted into any general ethical theory. Rothbard continues:

The crucial point is that even if the contextualist libertarian may say that, given the tragic context, Smith should throw someone else out of the lifeboat to save his own life, he is still committing, at the very least, invasion of property rights, and probably also murder of the person thrown out. So that even if one says that he should try to save his life by forcibly grabbing a seat in the lifeboat, he is still, in our view, liable to prosecution as a criminal invader of property right, and perhaps as a murderer as well. After he is convicted, it would be the right of the lifeboat owner or the heir of the person tossed out to forgive Smith, to pardon him because of the unusual circumstances; but it would also be their right not to pardon and to proceed with the full force of their legal right to punish. Once again, we are concerned in this theory with the rights of the case, not with whether or not a person chooses voluntarily to exercise his rights. In our view, the property owner or the heir of the killed would have a right to prosecute and to exact proper punishment upon the aggressor. The fallacy of the contextualists is to confuse considerations of individual, personal morality (what should Smith do?) with the question of the rights of the case. The right of property continues, then, to be absolute, even in the tragic lifeboat situation.

Again, Rothbards use of the even if disclaimer prior to the hypothetical proof that Smith should throw someone out of the lifeboat is a crystal-clear signal that Rothbard is merely entertaining this as a hypothetical counter to his thesis. What Rothbard has done is that he has shown his theory of property rights to hold even if someone were to prove that there are separate “personal” and “political” spheres of ethics. To re-iterate; Rothbard has not here accepted that there is indeed such a proof, all he has done is shown that the existence of such a proof is irrelevant to his legal theory.

Of course, such a proof does not exist, as said multi-sphere ethics would be a polylogism. Ought is ought, there is not ought-but-personal and a separate ought-but-political. There is only ought. Confusion on this matter comes due to colloquial usage of the word “ought” in sentences like, “you ought wear a coat because you don’t want to get wet.” There are two ways we can interpret this statement, either we assume that “ought” is being used in the precise logical meaning, or we assume it is being used as prudential advice. In the former case, the statement is simply invalid, it does not follow from the fact that a person doesn’t want to get wet that they ought prevent themselves from getting wet by wearing a coat. After all, I may want to rape a baby but it does not follow from the existence of this whim that I actually ought obey it. The latter interpretation of “ought” being prudential advice is a colloquial usage of the word—what is really being said is “if you want to not get wet wearing a coat will achieve this goal,” which is clearly an “is” statement, all that is being said is that the given strategy will attain the goal, not whether the goal is proper. Thus it could not be that “politically” you ought not aggress but “personally” you ought aggress, as that would be a contradiction—you ought aggress and you ought not aggress. Then it appears clear that Rothbard holds law as a subset of ethics but has also successfully shielded his theory from any attack which would seek to separate them.

This stance becomes confusing in the light of modern Austrian theorists, Hoppe has shown with his argumentation ethics that any attempt at negating the NAP leads to contradiction, but elsewhere claims that he was not attempting to derive an “ought” from an “is.”⁵ But surely if an ought statement which negates the NAP falls into contradiction its negation must be true? This will be analysed in greater depth below, but for now the contextualist counter-thesis to my position is summed up explicitly by Konrad Graf:⁶

Placing deductive legal theory within praxeology enables its reconstruction as a categorical and definitional assessment of what types of actions are NAP infringements—separate from moral assessment of such infringements. In this view, an example of an ethical statement would be, “One should not violate rights.” Legal theory helps to make this goal actionable by supplying information concerning the question: “What is ‘violating rights?’”

And what then does it mean to violate a right? As I’m sure Konrad would agree⁷ it means that you could not justify your conduct, but what does it mean that you cannot justify your conduct? It means you cannot claim that your conduct should go forth as said claim implies a contradiction, thus its negation that your conduct should not go forth is true. This is a legal claim and an ethical one—in fact, every legal claim is also an ethical claim, as every legal claim is a claim about which party should have possession in the conflict at hand.

There is an intuitive relationship between law and ethics. However, I argue that it is not one of a field to a sub-field, but rather an advisory relationship between two distinct fields. […] If one takes on the moral objective of not aggressing, one is more likely to be successful at this in action with a clear idea of what aggression is. “Rights infringements” become one category of wrongs next to other non-legal categories of wrongs that a given ethical system may specify. Yet the definition of what constitutes infringing rights is derived independently of ethics using the categorical, counterfactual method of praxeology. Although [Argumentation Ethics] establishes that no propositional argument against the NAP can succeed, it does not prevent human beings from infringing the NAP anyway.

Indeed, Konrad is correct that argumentation ethics does not prevent people from engaging in aggression, but it does demonstrate that any attempted justification of that aggression would fall into contradiction—that is to say any claim that one ought aggress implies a contradiction and thus its negation that one ought not aggress is true. Just as the fact that 1+1 makes 2 does not prevent people from acting erroneously on the thought that it actually makes 3, so too does the fact that aggression is evil not prevent people from erroneously acting on the thought that it is good. Furthermore, Konrad himself states that “the NAP forms the outer boundary of justifiability for any norm or rule,”⁸ this is because any norm in contradiction to the NAP is simply incoherent via the nature of justification as such. Law is pointless if it is not a subset of ethics—$A$ is a crime, but so what? What does it mean to have a right if it doesn’t mean that it should not be violated? Could one accept wholesale the NAP and the entire Rothbardian politics whilst agreeing with every ethical prescription we hear from the Marxists? If ethics and law merely intersect, where do they intersect, and why not elsewhere? What are those rights that should be violated and in what sense are they even rights if they shouldn’t be respected?

A favourite quote of the ethics and law separators comes from Hoppe himself, who states:⁹

[T]he praxeological proof of libertarianism has the advantage of offering a completely value-free justification of private property. It remains entirely in the realm of is-statements and never tries to derive an “ought” from an “is.” The structure of the argument is this: (a) justification is propositional justification—a priori true is-statement; (b) argumentation presupposes property in one’s body and the homesteading principle—a priori true is-statement; and (c) then, no deviation from this ethic can be argumentatively justified—a priori true is-statement. The proof also offers a key to an understanding of the nature of the fact-value dichotomy: Ought-statements cannot be derived from is-statements. They belong to different logical realms. It is also clear, however, that one cannot even state that there are facts and values if no propositional exchanges exist, and that this practice of propositional exchanges in turn presupposes the acceptance of the private property ethic as valid. In other words, cognition and truth-seeking as such have a normative foundation, and the normative foundation on which cognition and truth rest is the recognition of private property rights.

Hoppe is indeed correct that his above syllogism is not of the form “is statement, is statement, therefore ought statement,” but those in the Konrad-camp are incorrect to conclude from this that argumentation ethics fails to demonstrate the truth and falsehood of different ought statements. As Hoppe himself stated in that very passage recognition of the private property ethic (aka the NAP) as valid is a pre-condition for arguing over anything—thus, to try and dispute the NAP you have to first accept that it is true giving it axiomatic status just as surely as the action axiom or the law of non-contradiction. Furthermore we can use the conclusion of Hoppes above syllogism to construct a new syllogism:

1. I ought engage in aggression $X \longrightarrow p\wedge\neg p$ (a priori true is-statement);
2. $\neg(p\wedge\neg p)$ (a priori true is-statement);
3. $\therefore$ I ought not engage in aggression $X$ (a priori true ought-statement).

In other words, $\neg\text{NAP}\longrightarrow p\wedge\neg p\ \therefore \neg(\neg\text{NAP})=\text{NAP}$, but how could this be if facts and values “belong to different logical realms?”

Dismantling Hume’s Guillotine

The issue we come to with this view is a dogmatic application of Hume’s Guillotine, also called the fact-value dichotomy—the claim is that its impossible to derive an ought from an is. But clearly I have done just that; the negation of the NAP is an ought statement that implies a contradiction, contradictions are false, therefore the NAP is true—it is a true ought statement. However you want to describe this, whether I have “sidestepped” or “transcended” or plowed straight through Hume’s Guillotine the fact remains that there are true values and thus there is no dichotomy between facts and values.

This statement is incredibly controversial in the face of modern subjectivist philosophy, where insofar as ethics is even thought about it is dismissed out of hand as a mere description of what people want to do. But of course, saying that a person, $A$ wants to do $X$ over $\neg X$ is the claim that $A$ thinks he should pick $X$ over $\neg X$ when given the chance—that is to say a preference for $X$ over $\neg X$ is itself an ethical claim, so choice itself has value implications. I imagine almost everyone takes the is-ought gap for granted, thus I will take some time to further elaborate on why the fact-value dichotomy does not exist.

First, values in the ethical sense are not arbitrary, insofar as a person is engaging in any form of evaluation or making some argument or acting at all, he is necessarily making the choice of existence over non-existence. That is to say, to remain in reality, to claim anything to be correct at all, you must hold life as a value. To negate the value of life would be to immediately contradict oneself, as said negation would have to be performed by a living man, who chooses to keep living for the purpose of uttering his negation. The good therefore corresponds to that which is pro-life, and the bad that which is anti-life. Furthermore, man is not an automaton, he evaluates because he chooses, the choice he has at any crossroads is whether to be pro-life–i.e. in correspondence to reality–or anti-life–i.e. not in correspondence to reality. In other words, a man has always the choice whether to accept truth (to think) or to reject truth (to evade it). Because evading reality is itself a rejection of truth one cannot coherently argue for evasion, as this would involve making the truth claim that there is no such thing as truth—to which all one can ask is, “is it true that there is no such thing as truth?”

Because evasion or pro-falsehood is anti-life, and life is undeniably good, evasion is undeniably bad. In other words, any is-statement implies a set of ought-statements, and vice versa. Making a moral claim implies pre-suppositions about epistemology and metaphysics, and making claims about epistemology and metaphysics necessarily imply certain things about ethics.

In the objective approach, since every fact bears on the choice to live, every truth necessarily entails a value-judgment, and every value-judgment necessarily presupposes a truth. As Ayn Rand states the point in “The Objectivist Ethics”: “Knowledge, for any conscious organism, is the means of survival; to a living consciousness, every ‘is‘ implies an ‘ought.’” Evaluation, accordingly, is not a compartmentalized function applicable only to some aspects of man’s life or of reality; if one chooses to live and to be objective, a process of evaluation is coextensive with and implicit in every act of cognition.¹⁰

That is, facts about reality, such as that the sun shines, or that lightning strikes, have implications for mans self-preservation, and because man objectively ought endeavour to preserve himself, these metaphysically given facts imply certain things about what man should be doing. The fact that the sun shines and that within certain limits sunshine is good for man implies all sorts of oughts. For instance, other things being equal we ought grow our crops in the shine rather than the shade, because doing so will yield more crops and thus further mans life more than the alternative. Also we ought build our houses such that they have windows and we can get vitamin D. But sunlight can also cause us damage by burning our skin if we get too much of it, so other things being equal we ought avoid this outcome, perhaps by wearing sun-screen or bringing an umbrella for shade. “All these evaluations are demanded by the cognitions involved […].”¹¹

Again, because these things are pro-life, they are pro-truth and reality, therefore these oughts cannot be coherently negated. Moreover, to attempt to negate such an ought is indicative of an error in the thinker in question—they are either making an honest mistake or they are on an active rebellion against truth. Because error is bad, to embrace an error as fully as does the thinker in active rebellion against truth implies that the proper moral evaluation of this thinker is that he is wicked. Now, this is not the case for all such instances of perpetuating a falsehood, men are capable of making honest mistakes in their understanding of reality, this is most prevalent in the very young or in the intellectually impared. This is quite distinct to the academic Marxists and other subjectivists who dedicate their lives to the perpetuation of intellectually dishonest ideas.

[…] If the conscientious attempt to perceive reality by the use of one’s mind is the essence of honesty, no such rebellion can qualify as “honest.”

The originators, leaders and intellectual spokesmen of all such movements are necessarily evaders on a major scale; they are not merely mistaken, but are crusading irrationalists. The mass base of such movements are not evaders of the same kind; but most of the followers are dishonest in their own passive way. They are unthinking, intellectually irresponsible ballast, unconcerned with logic or truth. They go along with corrupt trend-setters because their neighbors demand it, and/or because a given notion satisfies some out-of-context desire they happen to feel. People of this kind are not the helplessly ignorant, but the willfully self-deluded.

EVEN IN REGARD to inherently dishonest movements, let me now add, a marginal third category of adherent is possible: the relatively small number who struggle conscientiously, but simply cannot grasp the issues and the monumental corruption involved. These are the handful who become Communists, “channelers,” etc. through a truly honest error of knowledge. Leaving aside the retarded and the illiterate, who are effectively helpless in such matters, this third group consists almost exclusively of the very young — and precisely for this reason, these youngsters get out of such movements fast, on their own, without needing lectures from others; they get out as they reach maturity. Being conscientious and mentally active, they see first-hand what is going on in their movement and they identify what it means; so their initial enthusiasm turns to dismay and then to horror. (Andrei in We the Living may be taken as a fictional symbol here.) The very honesty of such individuals limits their stay in the movement; they cannot tolerate for long the massiveness of the evil with which they have become involved. Nor, when such youngsters drop out, do they say to the world belligerently: “Don’t dare to judge me for my past, because my error was honest.” On the contrary — and here I speak from my own personal experience of honest errors that I committed as a teenager — the best among these young people are contrite; they recognize the aid and comfort, inadvertent though it be, which they have been giving to error and evil, and they seek to make amends for it. They expect those who know of their past creeds and allegiances to regard them with suspicion; they know that it is their own responsibility to demonstrate objectively and across time that they have changed, that they will not repeat their error tomorrow in another variant, that their error was innocent.¹²

Any form of ethical subjectivism which is required for the fact-value dichotomy to stand, implies an epistemology that holds that mere whims are the proper source of evaluation. This would make ethics (and therefore law) a completely pointless field with no reason for existing. That is to say, erecting Hume’s guillotine implies the complete demolition of ethics to the chattering applause of the most evil philosophies known to man. But, as Hoppe points out¹³ there are certain norms, namely property rights, must be accepted as valid prior to beginning any ethical deliberation whatsoever, even an ethical deliberation that seeks to destroy ethics. Therefore any ethical theorist who attempts to erect a dichotomy between fact and value must accept as valid certain values whilst attempting to demonstrate the invalidity of value as such. So a philosopher qua ethical theorist cannot speak of Hume’s Guillotine without falling into utter incoherence, and thus ethical subjectivism is an incoherent anti-ethics.

The immorality of error in ones understanding of the metaphysically given, such as that the sun shines, or that gravity causes objects to fall, pales in comparison to the immorality present wherever there are errors in man-made facts. Consider a world of total unreason in philosophy—such a world would imply mass death and suffering of the worst kind as all men would be acting as did Mao and Hitler and Stalin. No matter the level of technological development, such a society would be incapable of supporting human life. On the contrary, a far more technologically primitive society that accepts entirely reason and objective reality would find barely any natural disasters that could not be withstood. The standard of living in such a society would quickly soar where the opposite is true of the irrational society.

[…] To an individual in a division-of-labor society, it makes a life-or-death difference whether he is surrounded by producers or parasites, honest men or cheats, independent men or power-lusters. Just as one must distinguish between good and bad in relation to the realm of nature, so one must distinguish between good and bad in relation to the realm of man.

In Objectivist terms, this means a single fundamental issue: in the human realm, one must distinguish the rational from the irrational, the thinkers from the evaders. Such judgment tells one whether a man, in principle, is committed to reality — or to escaping from and fighting it. In the one case, he is an ally and potential benefactor of the living; in the other, an enemy and potential destroyer. Thus the mandate of justice: identify the good (the rational) and the evil (the irrational) in men and their works — then, first, deal with, support and/or reward the good; and, second, boycott, condemn and/or punish the evil.¹⁴

So the proper moral evaluation of an idea or more broadly a philosophy is that it is good insofar as it promotes human flourishing, and bad insofar as it does the opposite. This evaluation is not based on an arbitrary whim of the evaluator, it is not the claim that the idea or philosophy in question is merely distasteful to the man making the evaluation. An objective evaluation must make reference to the objective and undeniable value of life itself.

Implicit in saying that a certain idea is true is a positive moral estimate of the mental processes that led to it (a credit to the individual for having worked to grasp reality), and a positive estimate of the existential results to come (a true idea will have to yield pro-life results when men act on it). The same applies mutatis mutandis to false ideas. Implicit in saying that an idea contradicts the facts of reality is a negative estimate of the processes that led to it, and also of the effects the idea will have in practice, which have to be harmful. If one’s ideas are tied to reality at all and if one is guided by life as the standard, there is no way to identify an idea’s truth or falsehood without in some form also making such evaluations.

[…]

Truth is a product of effort and leads in action to value(s); hence, one says, the true idea is not only true: it is also good. Falsehood, assuming it reaches a certain scale, is a product of evasion and leads to destruction; such an idea is not only false; it is also evil.

An employee, to take a relatively modest positive example, offers a man an idea for improving the operation of his business. His idea, the boss concludes after weighing the evidence, takes into account all the relevant facts; he’s right. So far, this is pure cognition, the outcome of which is expressed in a statement like: “I agree with you.” But no decent person, whether he knows philosophy or not, would stop there; he would not say unemotionally, like a dead fish: “Your idea is correct. Good day.” On the contrary, precisely because the new idea represents a new grasp of reality, the moral kind of boss is enthusiastic, i.e., he evaluates the idea. He cannot avoid seeing two things: this employee of mine had to innovate, struggle, think to reach the idea when no one else did, and: the idea will cut my costs, increase my customers, double my profits. The boss, accordingly, is excited, he likes his employee, he praises him, he rewards him. He not only says about the idea: “true.” As an inevitable corollary, he says about it: “good.” That “good” is the evaluation or the “ought”; it represents the practice of justice and the tie to life.¹⁵

Thus it is completely inescapable that true is-statements imply true evaluations related to those statements, and false is-statements imply false evaluations related to those statements. Just as it is an error for the primitive man to attempt to make it rain by dancing, it is an error to commit murder, or to steal a wallet. These actions are bad because they are destructive of life and human flourishing, it is impossible to construct a rational property norm where aggression is allowed. And just as the fact that the rain-dancer is acting in error is not negated by the fact that he is still capable of performing the rain-dance nor is the fact that the murderer is acting in error negated by the fact that he is still capable of murder. It is incoherent to claim any crime to be a moral virtue, as every crime implies an evasion of objective law, and evasions are per se errors and errors are per se immoral. The true is the good, and the good is the true.

Some Choice Quotes

The following is a bank of miscellaneous quotes to demonstrate that I am not alone–nor particularly outside the (libertarian) norm–in my assertion that law is a subset of ethics, which critics (you know who you are) have attempted to paint as the case (my emphasis added):

The present work attempts to fill this gap, to set forth a systematic ethical theory of liberty. It is not, however, a work in ethics per se, but only in that subset of ethics devoted to political philosophy.

—Murray Rothbard¹⁶

It is not the intention of this book to expound or defend at length the philosophy of natural law, or to elaborate a natural-law ethic for the personal morality of man. The intention is to set forth a social ethic of liberty, i.e., to elaborate that subset of the natural law that develops the concept of natural rights, and that deals with the proper sphere of “politics,” i.e., with violence and non-violence as modes of interpersonal relations. In short, to set forth a political philosophy of liberty.

—Murray Rothbard¹⁷

A vital point: if we are trying to set up an ethic for man (in our case, the subset of ethics dealing with violence), then to be a valid ethic the theory must hold true for all men, whatever their location in time or place.

—Murray Rothbard¹⁸

Political philosophy is that subset of ethical philosophy which deals specifically with politics, that is, the proper role of violence in human life (and hence the explication of such concepts as crime and property).

—Murray Rothbard¹⁹

If ethics is a normative discipline that identifies and classifies certain sets of actions as good or evil, right or wrong, then tort or criminal law is a subset of ethics identifying certain actions as appropriate for using violence against them. The law says that action X should be illegal, and therefore should be combated by the violence of the law. The law is a set of “ought” or normative propositions.

Many writers and jurists have claimed the law is a value-free, “positive” discipline. Of course it is possible simply to list, classify and analyze existing law without going further into saying what the law should or should not be. But that sort of jurist is not fulfilling his essential task. Since the law is ultimately a set of normative commands, the true jurist or legal philosopher has not completed his task until he sets forth what the law should be, difficult though that might be. If he does not, then he necessarily abdicates his task in favor of individuals or groups untrained in legal principles, who may lay down their commands by sheer fiat and arbitrary caprice.

—Murray Rothbard²⁰

Political philosophy is the subset of ethics that deals with how two or more humans ought to interact with each other in society. It says nothing about how individuals should act in isolation. It answers social questions by showing us what is fair, just, and moral. Generally, the task of the political philosopher is to discover under what conditions it is ethically justifiable for humans to coerce or use violence against other humans. This question is prior to all man made laws, as coercion is required in order to enforce these positive decrees.

—Daniel Gibbs²¹

The vast bulk of legal theories throughout history have proceeded on the basis that an adequate and informative descriptive theory of law must also examine its normative basis in ethics and politics.

—Jonathan Crowe²²

The non-aggression axiom is the simple idea that it is immoral to initiate force against another person or their property. […] To libertarians, any use of force to change people’s behavior for any reason is a profoundly immoral act.

—Ron Paul²³

For a start, I believe the political must be explained in terms of the moral, or nonpolitical.

—J. Mikael Olsson²⁴

As legal theorists, therefore, we cannot accept an entirely mechanistic picture of the world. Legal theorizing is concerned with the ethical implications of action. It asks whether an actor should be held responsible for the consequences of his actions.

—N. Stephan Kinsella and Patrick Tinsley²⁵

Now because on the due date “Jones refuses to pay,” he finds himself in possession of \$1100 the title to which “has already been transferred” to Smith. So, he finds himself in possession of Smith’s rightful property. From this it is supposed to follow that Jones ought to have a legal duty to pay \$1100, for unless he makes this payment, he becomes the thief of Smith’s \$1100.

—Łukasz Dominiak and Tate Fegley²⁶

I have no problem with the thesis that, in a libertarian legal order, no individual or group […] should aggress against any person or any person’s property.

—Frank van Dun²⁷

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context.

—Ayn Rand²⁸

For Rothbard, immigration restrictions represented pure protectionism — favoring domestic workers over foreign in what ought to be an international division of labor

—Jeff Deist²⁹

I shall contend that emigration, migration, and immigration all fall under the rubric of “victimless crime.” That is, not a one of these three per se violates the non-aggression axiom. Therefore, at least for the libertarian, no restrictions or prohibitions whatsoever should be placed in the path of these essentially peaceful activities.

—Walter Block³⁰

Is this petty? Perhaps. Is it necessary? Probably.

Related Reading

• Leonard Peikoff, Fact and Value, https://peikoff.com/essays_and_articles/fact-and-value/

Footnotes

¹ Leonard Peikoff, Fact and Value, https://peikoff.com/essays_and_articles/fact-and-value/

² Murray N. Rothbard (1982), “Law as a Normative Discipline,” in idem. Law, Property Rights, and Air Pollution, Cato Journal 2, No. 1 (Spring 1982), pp. 55-99, pagination retained from https://mises.org/library/law-property-rights-and-air-pollution

³ Murray N. Rothbard (1982), “Lifeboat Situations,” in idem. The Ethics of Liberty.

⁴ On this see: Ayn Rand (1990), Introduction to Objectivist Epistemology.

⁵ Hans-Hermann Hoppe (2005), The Economics and Ethics of Private Property, pp. 322, 345, 401, 408.

⁶ Konrad Graf (2011), “Ethics: Disentangling Law and Morality,” in idem., Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Libertarian Papers 3, 19.

⁷ Konrad accepts Hoppes argumentation ethics proof of libertarian theory, thus the nature of justification is surely the root of his understanding of rights.

⁸ Konrad Graf (2011), Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Libertarian Papers 3, 19, p. 53.

⁹ Hans-Hermann Hoppe (2005), “On The Ultimate Justification of the Ethics of Private Property,” p. 345, in idem., The Economics and Ethics of Private Property, second ed.

¹⁰ Leonard Peikoff, Fact and Value, https://peikoff.com/essays_and_articles/fact-and-value/

¹¹ Ibid.

¹² Ibid.

¹³ Hans-Hermann Hoppe, Introduction to Murray Rothbard, Ethics of Liberty

¹⁴ Leonard Peikoff, Fact and Value, https://peikoff.com/essays_and_articles/fact-and-value/

¹⁵ Ibid.

¹⁶ Murray N. Rothbard (1982), The Ethics of Liberty, p. xlviii

¹⁷ ibid., p. 25

¹⁸ ibid. p. 42

¹⁹ ibid. p. 258

²⁰ idem. (1982), Law, Property Rights, and Air Pollution (pagination retained from idem. (1997), The Logic of Action Two, pp. 121-170), p. 122

²¹ Daniel Gibbs, The Justice of Inequality: Argumentation Ethics and Radical Non-Aggression

²² Jonathan Crowe (2019), Natural Law and the Nature of Law, p. 2

²³ Ron Paul, foreword to Walter Block (2013), Defending the Undefendable II: Freedom in All Realms, p. x

²⁴ J. Mikael Olsson (2016), “Justifying the State from Rights-Based Libertarian Premises,” Libertarian Papers. 8 (1): 59-79. ONLINE AT: libertarianpapers.org.

²⁵ N. Stephan Kinsella and Patrick Tinsley (2004), “Causation and Aggression,” in The Quarterly Journal of Austrian Economics Vol. 7, No. 4 (Winter 2004): 97-112

²⁶ Łukasz Dominiak and Tate Fegley (2022), Contract Theory, Title Transfer, and Libertarianism, p. 10

²⁷ Frank van Dun, “Against Libertarian Legalism: A Comment on Kinsella and Block,” Journal of Libertarian Studies 17, no. 3 (Summer 2003), pp. 63-90

²⁸ Ayn Rand, “Man’s Rights,” in idem. The Virtue of Selfishness and in idem. Capitalism: The Unknown Ideal.

²⁹ Jeff Deist, Immigration Roundtable: Murray Rothbard, https://mises.org/library/immigration-roundtable-murray-rothbard

³⁰ Walter Block, “A Libertarian Case for Free Immigration,” Journal of Libertarian Studies 13:2 (Summer 1998): 167-186