Tom Woods has a podcast out with Stephan Kinsella examining several arguments made by Matt Zwolinski against the non-aggression principle (see “Six Reasons Libertarians Should Reject the Non-Aggression Principle”). While I agree with the majority of their critique of Zwolinski’s article, I’ll here address my one major disagreement.
In October, I discussed the child abandonment issue for libertarianism at length, mentioning both the views of Murray Rothbard and those of Walter Block. As I noted, a Rothbardian, faced with the situation of a parent being thrown in jail for allowing his child to starve, would absurdly have to complain not about the blatant murder of the child, but instead about the fact that the parent was thrown in jail. With no positive obligations, Rothbard’s view of libertarianism allowed for a society where parents starved their children in the masses. There were no limitations and violence could not be used to punish or prevent these parents. Fortunately, one could, however, shout at them and tell them what terrible people they were (from one’s own property).
Block’s view was an improvement but still had some unreasonable leftovers. According to Block, in a libertarian society, a parent would have to notify as many people as practically possible around them (e.g. through a newspaper, or through adoption agencies, etc.) if he chose to give up ownership of his children. In addition, he would not be able to stop those trying to adopt his kids from coming onto his property in order to homestead them. However, in situations where the adults in the community were unwilling to take his children, or unable, due to poverty or lack of knowledge (due to a slow spread of information), the children could still starve to death, and no use of force to either prevent the parent from doing this or to punish him in the aftermath would be allowed.
In Woods’s podcast with Kinsella, the two promoted a third view and offered an interesting analogy. Suppose you push a person into a lake and he can’t swim so he starts drowning. According to Kinsella, by your voluntary action of pushing the person into the lake and aggressing against him, you now have a positive legal obligation to save him. Most of us agree with this, but is it libertarian? Perhaps just as you lose your rights when you aggress against someone, and they have the right to punish you and take restitution, you also have an obligation to reduce the damaging impact of your previous aggression. I find this plausible, but it does need to be laid out systematically. For now, let’s move on.
Like Block’s attempted fix, Kinsella’s unfortunately also leaves the child abandonment issue unsolved and libertarianism open to other criticisms under the category of positive obligations. For the former, consider acts of rape. Let’s say a woman is raped by a man, becomes pregnant, and has a child. If the man disappears or is imprisoned, he may not effectively be able to or be called on to take care of the baby. If the child’s custody then falls to the woman, how is Kinsella to deal with a situation in which she chooses to abandon the child? Since a mother who is a rape victim did not voluntarily choose to have sex and create that child, it seems that she, unlike the voluntary mother, has no positive obligation to take care of it. It seems, then, according to Kinsella and Woods, that a rape victim who becomes a mother can let her child starve to death.
What if we take Kinsella’s general view and add on to it Block’s view for cases of rape (I see no necessary contradiction between the two beliefs)? (EDIT 1-13: I’ve just realized that it is unnecessary for someone with Kinsella’s view to add on Block’s view. Kinsella’s view doesn’t just create a positive duty for someone who voluntarily has a baby, but also for someone who voluntarily homesteads a baby. However, the 2nd criticism in this paragraph still applies and the “drowning child” criticism further below applies as well.) Then the rape victim who chooses to abandon her child must notify as many adults as she practically can around her and not stop others who wish to adopt her child from coming onto her property in order to homestead him or her. However, we are then back with the same problem we had originally with Block’s view. In situations where a rape victim wants to abandon her child and there are no adults around willing or able (perhaps, again, due to poverty or lack of information) to adopt the child, she can legally let it starve to death. In addition, there is another scenario that proves troublesome. What if, after the baby’s birth, the mother who was raped never claims ownership of the child but simply lets it be? If she never homesteads her child, then Block’s solution doesn’t work; she doesn’t have to notify anyone she is giving up ownership if she never had ownership in the first place. This is hardly the extreme reductio we started out with due to the rarity of the situations, but it nevertheless poses a problem for NAP libertarianism: it threatens the principle’s universality.
Finally, what of the “other criticisms under the category of positive obligations” that the views of Kinsella and Block (respectively, but also if combined) leave libertarianism open to? Consider Peter Singer’s “Drowning Child” thought experiment. Let’s say you’re walking to class one day and you notice a child drowning in a shallow pond nearby. You could save him fairly easily and without risk to yourself, but you’d have to go through some trouble of getting your clothes wet and muddy. Do you have a positive obligation, and one that can be enforced, to save that child from death?
Most of us would agree there’s a positive moral obligation to save the child. Any person who chose not to because they didn’t care enough or were lazy would be an unethical human being. Would it be an enforceable (or legal) obligation though? This isn’t as clear, but I think most would still fall on the side of saying yes. It’s possible I’d oppose a “duty to rescue” law (like the Good Samaritan law on Seinfeld) forcing people to act in such situations, but my opposition would not center around it being strictly immoral to use force in such situations, but instead around practical reasons, e.g. is it easy to tell the motivations of the person, could he have just frozen up, was there risk involved, would a law be the right way to incentivize people? Meanwhile, the NAP libertarian would be forced to declare any law created or any force used as punishment against the bystander an aggression. If the government fined him $100, libertarians would call it theft. If an adult late to the scene came and punched him in rage for his inaction, libertarians would call it assault, and consider it justified for the “assault victim” (yes, we’re talking about that guy who just let a little kid drown to death) to press charges.
For those that are still unsure, luckily, it’s quite easy to come up with variations of the drowning child example to find other situations we can agree with more easily. For example, now let’s say that you’re a few miles away on the phone with your friend, and your friend is the one who walks by a shallow pond with a child drowning in it. He tells you about the situation and how the little girl is kicking and slapping her arms about wildly but says he’s going to be late for class and doesn’t want to help. You shout “How can you be concerned about your class at a time like this!? Go save the kid!” He refuses. At your wit’s end, you angrily and truthfully shout into the phone “If you don’t save the kid, the next time I see you, I’m going to beat the snot out of you.” Your friend, realizing your anger and believing your threat, finally decides to save the child.
If it wasn’t for the threat of force against your friend, the child would have died. Because of that action, the girl is alive and your friend has done his duty; he may even realize this one day and thank you for it. Again, most of us would agree that this threat is perfectly just. We might argue about some practical considerations like “maybe he should have tried persuading him without the threat at first,” but ultimately if a threat was necessary, it would definitely be justified.
Unfortunately, the non-aggression principle has no way to deal with this. Kinsella and the libertarians who agree with him must call the threat unjust because, like the rape victim who lets her child starve to death, there is no voluntary action linking the potential savior to the dying child and creating a positive enforceable duty between them. Finally, even those that agree with Block or want to apply a combination of both views, have no way of doing this either since the potential savior never homesteaded the drowning girl, as a voluntary parent does for his child, and therefore also has no link to her to create a positive enforceable duty.
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Check out this post if you are unfamiliar with tax shifting. It will help in understanding the following.
Rothbard states “Shifting occurs if the immediate taxpayer is able to raise his selling price to cover the tax, thus “shifting” the tax to the buyer, or if he is able to lower the buying price of something he buys, thus “shifting” the tax to some other seller.” (p. 1156)
As he goes on to point out in the case of the general sales tax, however, both a producer’s selling prices go up and buying prices go down. So I thought these clearly could not be the key criteria.
He states “It is true that a tax can be shifted forward, in a sense, if the tax causes the supply of the good to decrease, and therefore the price to rise on the market. This can hardly be called shifting per se, however, for shifting implies that the tax is passed on with little or no trouble to the producer. If some producers must go out of business in order for the tax to be “shifted,” it is hardly shifting in the proper sense but should be placed in the category of other effects of taxation.” (p. 1156-1157)
My issue with Rothbard was, however, that I felt this argument could be flipped on him; Rothbard believed that a sales tax could be shifted backward.
I could say “It is true that a tax can be shifted backward, in a sense, if the tax causes the demand for the factors of the production of the good to decrease, and therefore the price of the factors to fall on the market. Production in this way is hampered, causing supply to decrease and marginal firms to go out of business. This can hardly be called shifting per se, however, for shifting implies that the tax is passed on with little or no trouble to the producer. If some producers must go out of business in order for the tax to be “shifted,” it is hardly shifting in the proper sense but should be placed in the category of other effects of taxation.”
This is because, even in Rothbard’s proposed correct version of events where a tax is shifted backward, supply decreases, meaning marginal firms go out of business.
If the above seems a little confusing to you, try this one instead:
In Murphy’s Study Guide to Man, Economy, and State with Power and Market, he states:
“Tax incidence refers to the actual long-run burden of taxation, which may differ from the immediate target. No tax can be shifted forward. (If retailers had this power, why wait for the tax?)”
That’s basically what I was trying to do, although my response to Rothbard’s is more detailed.
After discussing this with Dr. Herbener, he pointed out that the two cases are not symmetric in the relevant sense. What matters is not whether firms eventually go out of business, but whether firms immediately go out of business as a result of shifting the tax. It’s true that firms eventually go out of business in both scenarios, but in the forward shifting scenario, firms go out of business immediately (as supply decreases – this is the proposed mechanism for tax shifting for this scenario, firms immediately go out of business) while in the backward shifting scenario, firms go out of business eventually (the tax shift occurs earlier, the proposed mechanism being firms paying lower incomes to their facts, which they do not directly go out of business from, but eventually go out of business from because of the “other effects”).
Why is this important? Because the immediate effect is what matters for whether we call it tax shifting or not. If firms go out of business as an immediate effect of shifting the tax, this cannot be properly seen as shifting a tax. However, in every scenario where taxes are added to a free market, there will be “other effects”, or as I have been saying, eventual effects, where people are harmed, including firms. So firms being eventually hurt does not invalidate backward shifting as an example of tax shifting.
In conclusion, yes: a tax can be shifted backward and this is perfectly consistent with Rothbard’s argument against forward shifting.
Last April, I wrote a blog post titled “Rousseau Blowing Up The Right of the Stronger.” Rousseau was arguing against the idea that morality is derived from the greater force; in other words, (this idea argues that) if A is stronger than B and forces him to do action X, action X is moral. And so on, regardless of the content of action X. All that matters is that A was the “stronger” and therefore all of the actions B takes because A forces him are moral actions.
Rousseau blew up the argument by pointing out the incoherence in the concept of morality if it is true that there is a right of the stronger. He points out “To yield to force is an act of necessity, not of will; at most it is an act of prudence.” Morality exists only because of choice. You have the choice to be moral or immoral. But if morality is a function of the greater force, then 1) you are not acting out of duty (as one thinks of morality), but only necessity (as Rousseau says, the word “right” adds nothing to force and therefore means nothing), and 2) there is no longer any concept of immorality; after all, you cannot even act immorally if you are constantly forced to be moral.
My purpose here is to show how this argument applies to legislation in government, although it may already be clear to some readers by now.
Often, individuals (especially conservatives) attempt to legislate morality. Two examples that immediately come to mind are 1) making drugs (such as marijuana) illegal and 2) making prostitution illegal.
Rousseau is arguing against a general right of the stronger, that is, the right of the stronger in all instances. But does legislation of particular activities leave the concept of morality intact? It does in all particular cases that aren’t legislated against. But it destroys the concept in the areas that are.
Suppose actions A,B,C are immoral and X,Y,Z are moral. Can we force an individual, say, Mr. Jones, who chooses to take actions A,B,C, to act morally? Rothbard responds:
Is Jones moral because he chooses X when he is forcibly deprived of the opportunity to choose A? When Smith is confined to a prison, is he being moral because he doesn’t spend his time in saloons getting drunk?
There is no sense to any concept of morality, regardless of the particular moral action one favors, if a man is not free to do the immoral as well as the moral thing. If a man is not free to choose, if he is compelled by force to do the moral thing, then, on the contrary, he is being deprived of the opportunity of being moral. (Man, Economy, and State with Power and Market, p. 1305); emphasis mine
Clearly, there is no meaning to morality if it is dependent on the right of the stronger. And clearly, there is no meaning to morality in specific instances where force is used and the will of the actor is prohibited.