CJay Engel

September 3, 2019

Libertarianism: Political or Legal Theory?

The temptation here is to declare my conclusion outright: libertarianism is a legal theory, not a political theory. But perhaps I should exercise more restraint: there are two visions/versions of libertarianism and their dehomoginization will be a future theme of the Austro Libertarian website, as well, of course, of the magazine itself. In any case, I've for some time been dissatisfied with the idea that libertarianism is a political theory. I think that there is a political theory that can flow from libertarianism, or perhaps we can say that libertarianism speaks to political theory, but it has always seemed to me that libertarianism should be thought of primarily as a legal theory, which can subsequently make judgements about politics and the state.

That is, libertarianism is chiefly a set of propositions about right (legal) and wrong (criminal) civil behavior. For instance, at the beginning of chapter 9 in Ethics of Liberty, Murray Rothbard states that "we may define anyone who aggresses against the person or other produced property of another as a criminal. A criminal is anyone who initiates violence against another man and his property."And indeed, in his characteristically precise explanation of what libertarianism is, Hans Hoppe doesn't even mention the political first; he mentions the legal as the operating definition:

Libertarianism is a rational system of ethics (law). ...libertarianism (Rothbardianism) is a systematic law code, derived by means of logical deduction....
From the principle of ownership comerules concerning the transformation and the transfer (exchange) of originally appropriated resources are derived, and all of ethics (law), including the principles of punishment, is then reconstructed in terms of a theory of property rights: all human rights are property rights, and all human rights violations are property rights violations. The upshot of this libertarian theory of justice is well-known in these circles: the state, according to the most influential strand of libertarian theory, the Rothbardian one, is an outlaw organization, and the only social order that is just is a system of private property anarchy.
Here, we notice two things: one, libertarianism is a legal theory from which political theory can be judged (the concept of justice comes first, then we compare justice to the nature and activity of the state); and two, I was correct in my earlier statement that liberty flows from justice, not justice from liberty.

About the author

C.Jay Engel is the founder and publisher of Austro Libertarian. He has written for, LRC, David Stockman, and others. He owns several consulting business and actively works on the magazine, for Tom Woods, and lives in Northern CA.

more from the blog