Promulgation of Libertarian Law

pexels-photo-3851253In his Treatise on Law, St. Thomas Aquinas is faced with the problem of the promulgation of the natural law. Aquinas writes, “It would seem that promulgation is not essential to a law. For the natural law above all has the character of law. But the natural law needs no promulgation. Therefore it is not essential to a law that it be promulgated.” Aquinas responds to this charge by arguing that the natural law is indeed promulgated. He answers, “The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally.”

The libertarian faces similar charges towards his natural law theory. ‘How is it,’ asks the critic, ‘that men are to know what the law is?’ I believe that Aquinas’ answer does, to some extent, work for the libertarian. Do we not all know the difference between mine and thine and that what is yours is not mine and what is mine is not yours? As Hoppe puts it,

In light of widespread moral relativism, it is worthwhile to point out that this idea of original appropriation and private property as a solution to the problem of social order is in complete accordance with our moral “intuition.” Isn’t it simply absurd to claim that a person should not be the proper owner of his body and the places and goods that he originally, i.e., prior to anyone else, appropriates, uses and/or produces by means of his body? For who else, if not he, should be their owner? And isn’t it also obvious that the overwhelming majority of people — including children and primitives — act in fact according to these rules, and do so unquestioningly and as a matter-of-course?

Michael Huemer makes a similar argument in his book, Ethical Intuitionism in which he argues that our intuitions can be our ethical guide and that our intuitions are libertarian. I’m not opposed to this type of research and I think that it can serve as an excellent defense of libertarianism, but this may not suffice for the thorough legal theorist who wants to defend the promulgation of libertarian law on something external to ourselves. In fact, Hoppe follows up the above quote by saying, “A moral intuition, as important as it is, is not a proof, however. Yet there also exists proof of our moral intuition being correct.”

So how can we defend Libertarian law as always promulgated? First, let us take a look at promulgation of the positive state law. How is it promulgated? In the United States when a federal law is passed, the people must become aware of the law somehow. How they do it depends on how the law was formulated. It is different whether the law became law via legislation, via executive branch policy decisions, or by a Supreme Court decision. Regardless of the way that this is actually executed, the government must decide to expend a certain amount of resources on informing the public of the change of law. They can use government websites, newspapers, community programs, press conferences, etc. We must ask then, at what point is a law considered promulgated? The government could do more to promulgate their laws. They could hire town criers, they could broadcast new laws over loudspeakers in every town square, they could insert speakers into every American’s ear so that every time a new law is passed, citizens are immediately informed.

What I hope to point out is that we can always do more to promulgate our laws. But out of practicality, no one would ever suggest that we spend all resources on law promulgation (not to mention the fact that this would make legislation [or anything that isn’t promulgation] impossible if all resources were directed to promulgation of the law itself). As we can see, a requirement of promulgation for something to obtain the status of law is not black and white. It is not either promulgated or not-promulgated. There are degrees to which we have promulgated a law.

So what does this mean for libertarian law? Am I pushing back on Aquinas and saying that promulgation is not a requirement of law at all? Not exactly. What I want to show is that libertarian law is promulgated even better than positive state law.  Libertarian law consists of the following rules: All persons are the proper owners of their own physical bodies. All previously unowned resources come into the ownership of the first person to use the unowned resource. One can become the owner of a currently owned resource only through voluntary contract between the current owner and the future owner which transfers title to that property from the former to the latter. All other physical invasions of person or property are thus criminal under libertarian law.

I believe the easiest part of defending my claim is the libertarian law which would arise out of voluntary contract. Contracts, even today without a libertarian legal order, create private laws. They create laws between two or more parties who have agreed to certain terms of use and of title to their property. When two parties enter into a contract, they bind their property to it. Of course, it is only voluntary contracts which are binding. Thus, one could not be bound to the private law made by a contract unless they had themselves agreed to it. And in order to agree to something, you must know what you are agreeing to. Thus, all private law stemming from voluntary contract must be promulgated. Compare this to the endless myriad of new laws that are passed and stored in the United States Statutes at Large which I would hazard that no man has read in its entirety.

The more difficult problem of promulgation arises from the demarcation of property. Since it is legitimate for anyone to take into their rightful possession any previously unowned resource, distinction between what is owned and unowned becomes a necessity for the promulgation of libertarian law. There are some cases, I believe, in which these distinctions are obvious. Imagine that you come across a car in a parking lot in front of an office at 2pm on a Wednesday afternoon. Since nature does not provide cars naturally, man must take nature and transform it into a car, it can be assumed that the car is owned. The car must have come into the proper possession of a person before it could even become a car. Therefore, it cannot be a nature-given resource which was never owned. One must recognize that someone else is the proper owner of that resource and not themselves. There is still the possibility that the car has been abandoned and no longer has an owner, (see my discussion of property abandonment here) but contextual clues will tell most people that this is not the case. The car being parked in front of an office during normal working hours can tell us that the car is likely owned by someone who works in the office. This would not be the case if the car was found covered in moss in a rarely-explored forest in which contextual clues will tell us that it is more likely that the car has been abandoned.

There are even more difficult circumstances under which we may not be able to promulgate that a resource has become owned. One such instance, as pointed out by Roderick Long, is the plausibility of a conservation space whose purpose is the conservation of nature. How can the libertarian differentiate between the owned and the unowned in this case? Long posits that we can pay people or persuade people not to use the space. We can make signs telling others not to use the land since it meant to be a nature conservatory. In this way, we have transformed the land by attempting to stop others from changing the land and have become rightful first-users (and therefore owners) of the land. In this case, the promulgation of ownership of the land is the way in which the land becomes rightfully owned. Again, libertarian law is promulgated even in cases in which the owned resource itself, the land, has not undergone any man-made transformations.

All promulgation must be considered in degrees. Libertarian law, compared to its positive state law counterpart, can let itself be known to the world even more easily and readily to the public who should obey it.

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