“Criminal” Metaphor in the Libertarian Tradition, The
Editor’s Note: This article first appeared in THE JOURNAL OF LIBERTARIAN STUDIES, Vol. 5 (Summer 1981), pp. 313-325. Footnotes have been deleted from the version printed here.]
During the last 350 years of constitutional and political struggle in England and the United States, perhaps the most libertarian image to be invoked by political theorists has been the comparison of existing, so-called “legitimate” governments to “organized gangs of banditti, pirates, highwaymen, and robbers.” Such metaphors have been a constantly recurring theme because the central thrust of libertarian thinking is to oppose any and all forms of invasion against property rights of individuals, in their own persons and in the material objects they have voluntarily acquired. The Levellers and other opponents of King Charles I and Oliver Cromwell were among the first to challenge the legitimacy of governments as being tyrannical and unjust. The rebels in the American colonies based their revolt against the English Crown on similar grounds of natural law, as outlined in the Declaration of Independence. Early antislavery radicals in both countries extended their libertarian arguments against slavery and challenged any government that sanctioned a violation of man’s natural rights. Propelled by the logic of the natural law tradition and the events of the American Civil War, Lysander Spooner relied heavily on the “criminal” metaphor to buttress his arguments for individualist anarchism.
The doctrine of natural liberty is ultimately grounded on two premises which are necessary to the understanding of why governments are “criminal.” By the self-ownership axiom, every individual has an absolute right to his or her own mind and body and the labor thereof; i.e., each person has the right to control that mind and body free of coercive interference. By the homesteading axiom, the first user, the first person who transforms and uses previously unclaimed and unused resources, becomes their absolute owner. Since people must live in a particular place and their labor must be applied to the material objects around them, they rightfully become the owners of hitherto unclaimed and untransformed natural resources. As defined by libertarianism, freedom is a condition in which a person’s ownership rights of his own body and of his legitimately (according to libertarian principles) acquired material property are neither invaded nor aggressed against. Crime, in the same context, is an act of aggression against these property rights, either in an individual’s own person or in his materially owned objects.
Most people would probably support the libertarian rejection of crime in their personal dealings. They would reject the use of violence, such as murder, theft, kidnapping and extortion. The uniqueness of libertarianism consists in the manner in which this principle of non-aggression is developed. To the libertarian, it matters neither who commits a crime, nor how many are involved in sanctioning its commission. As one early libertarian said:
Whatever constitutes despotism or cruelty will be continually the same. Considerations of rank and power can never alter the genuine character of human action; if the scymeter is stained with innocent blood, it matters nothing whether the fatal blow was struck by a monarch or a robber. Oppression and crime are the same in every corner of the globe; the experience of mankind with respect to their characteristics will be constant and uniform; upon those subjects, therefore, the sentence of human understanding will be ever steady and correspondent.
In other words, for the libertarian, “Crime is crime, aggression against rights is aggression, no matter how many citizens agree to the oppression. Even if 90 percent of the people decided to murder or enslave the other 10 percent, this would still be murder and slavery.” Libertarians unanimously endorse respect for individual rights and they conclude that the only possible crime among men is the violation of individual rights. The important consideration for libertarians is that individuals are always responsible for a violation of rights. Groups never act; it is always and necessarily individual members of the group who commit crimes in the name of the larger organization. “Men never lose their individuality. Though in authority, they are still men and act as men… . The acts of a government are acts of individuals - of individual men, whose accountability is in no respect changed by their official character.”
The natural law tradition affirms the libertarian attitude towards crime and aggression. The philosophy of natural law defends the rational dignity of the human individual. It provides the only basis on which the individual may rightfully criticize, in word and deed, every institution and social structure which is incompatible with the universally held moral principles of natural law. In his discourse on “The People’s Ancient and Just Liberties,” William Penn outlined the contents of the natural law, which he considered fundamental and immutable: