The Artful Dilettante is a native of Pittsburgh, PA, and a graduate of Penn State University. He is a lover of liberty and a lifelong and passionate student of the same. He is voracious reader of books on the Enlightenment and the American colonial and revolutionary periods. He is a student of libertarian and Objectivist philosophies. He collects revolutionary war and period currency, books, and newspapers. He is married and the father of one teenage son. He is kind, witty, generous to a fault, and unjustifiably proud of himself. He is the life of the party and an unparalleled raconteur.
To understand what House Speaker Nancy Pelosi’s select committee investigation of the Capitol Hill events of Jan. 6 is all about, a good place to begin is with the sentencing hearing last week of Paul Hodgkins.
A crane operator from Tampa, Florida, Hodgkins, 38, pleaded guilty to a single count of obstructing a joint session of Congress called to confirm Joe Biden as the next president.
Hodgkins entered the Senate chamber carrying a Trump 2020 flag. He committed no assault, no act of destruction, no act of violence. Yet, he was sentenced to eight months in prison by U.S. Judge Randolph Moss.
Special Assistant U.S. Attorney Mona Sedky argued for a sentence of twice that length, a year and a half, because, as she told the judge, “Jan. 6 was genuinely an act of terrorism.”
But is that true? Was Jan. 6 “an act of terrorism” — of the character if not the magnitude, say, of the Oklahoma City bombing?
Hodgkins’ attorney vigorously rejected that depiction. To call Jan. 6 “domestic terrorism,” said Patrick Leduc, is “offensive and gaslighting the country … It was a protest that became a riot, period, full stop.”
Leduc is correct: Jan. 6th was a riot. Had it truly been “domestic terrorism,” as the U.S. attorney claimed, why would she have accepted a guilty plea for a single nonviolent offense?
Why did she not throw the book at the terrorist?
Looking back, what was Jan. 6 in reality?
A huge pro-Trump demonstration of tens of thousands, out of which a mob of hundreds moved on the Capitol, broke police lines, assaulted cops, rampaged and disrupted an official proceeding.
All in all, a shameful disgrace. But 1/6 was not 9/11 or Oklahoma City or Pearl Harbor or the Pulse nightclub or the Las Vegas massacre.
Why is it being hyped like this? Why will the establishment not let go of Jan. 6? Why, half a year on, does it remain an obsession of regime media?
The hype never ends. Daily, we hear establishment politicians and press paint it up as the most awful day in America’s history.
It was, we are told, an “armed insurrection,” “domestic terrorism,” an attempted “coup,” “an act of treason,” “the worst attack on American democracy since the British burned the Capitol in 1814.”
Why did Pelosi recoil from and reject two of House Republican Leader Kevin McCarthy’s picks for her select committee — Reps. Jim Banks of Indiana and Jim Jordan of Ohio?
Because the deck is stacked, the fix is in. Pelosi’s committee has been crafted to bring in a third impeachment of Donald Trump and the GOP for posing the greatest threat to American democracy since Fort Sumter.
Issues, arguments and questions Banks and Jordan would have raised would have been off-script and interrupted the agreed-upon narrative.
Indeed, of whom does the select committee consist as it opens its hearings today?
Every Democrat of the committee has voted to impeach Trump for Jan. 6. Both of the Republicans Pelosi put on the committee to provide bipartisan balance — Wyoming’s Liz Cheney and Illinois’ Adam Kinzinger — voted to impeach Trump last January and are the two ranking anti-Trump Republicans on Capitol Hill.
Pelosi has impaneled a jury to try Trump and the GOP for insurrection, every one of whose members has already indicated they believe that Jan. 6 is a historic crime and Trump is guilty.
Why are Pelosi and the regime media doing everything to keep Jan. 6 alive? What are the stakes involved?
As of today, Jan. 6 is the biggest and last best stick the Democrats have for retaining control of Congress in 2022.
For if that election is not about the worst day for the GOP of the Trump years, it is going to be about the successes and failures of the first two Biden years.
And what, as of today, look to be the issues of 2022?
That election will be about the worst outbreak of inflation in a quarter-century to hit the U.S. economy. It will be about Biden’s having presided over a fourth wave of the COVID-19 pandemic, after having declared on July 4, 2021, our independence of the virus.
It will be about the largest invasion of illegals across America’s southern border in the history of the republic — 2 million a year in 2021 and again in 2022, with 300,000 of these “gotaways” who evaded any contact with the Border Patrol.
Among the 4 million anticipated illegals in Biden’s first two years are child molesters, drug dealers and unvaccinated carriers of COVID-19.
The election of 2022 will also be about a wave of shootings, woundings, killings and gun crimes in our greatest cities that have long been governed by liberal Democrats.
The Democratic establishment and its media arm have a vital interest in hyping Jan. 6 and not letting go of it. For Jan. 6, 2021, is their last best hope for holding power after Nov. 8, 2022.
Patrick J. Buchanan is the author of “Nixon’s White House Wars: The Battles That Made and Broke a President and Divided America Forever.”
I spent part of today reading the Democratic media and their Dr. Fauci. Here’s my takeaway:
COVID vaccines work.
People who didn’t get the vaccine are infecting people who did get it. Yet the vaccines work. Well, they work UNLESS you’re in the presence of someone not vaccinated. Then the vaccine temporarily stops working, it seems. Therefore, people who don’t get vaccinated are evil. They must be prevented from going to stores, restaurants or theaters. Mandates will soon come. Some say they deserve worse.
Even though the vaccinated will soon be segregated from the nonvaccinated, the vaccinated will still have to return to masks and probably lockdowns–very soon. Even though the segregation of vaccinated and nonvaccinated is supposed to prevent a return to mask mandates and lockdowns, for reasons I cannot yet ascertain this is ALL the fault of the unvaccinated.
It’s so illogical I can hardly breathe. But this is literally what I take away from the Establishment news and the one Party in charge of everything
The United States is currently subject to a sharp political divide between the left and the right, with just around half of the country on each side. The two sides obviously differ in the government policies that they advocate, but there is another difference that I think is even more important. The right, or at least most of it, welcomes differences of opinion, while the left allows no dissent from the orthodoxy of the moment.
An op-ed by Ben Shapiro in today’s New York Post provides several notable examples. But this one best illustrates the left/right divide on tolerance of dissent:
[In 2019] I attended a rather tony political summit — perhaps the only real ritzy cocktail party I’ve ever gone to. One of the other attendees happened to be one of the more prominent left-wing podcasters in the country. After a few pleasantries, I suggested that perhaps we ought to do an election-year crossover podcast. “The numbers,” I said, “would be extraordinary. And I know my audience would love it. We’re always having on guests who disagree.” “I’m sure your audience would be cool with it,” the podcaster answered. “But mine would murder me.”
And Shapiro provides plenty of other instances of erstwhile members of the political left learning the hard way what happens when you stray from orthodoxy: for example, Martina Navratilova and J.K. Rowling for saying that “a man calling himself a woman is not in fact a woman,” and Sam Harris and Steven Pinker for saying that “cancel culture is real.”
Over here on the right, debate is what makes life interesting. The Federalist Society has made setting up debates its thing for over thirty years, often between left and right, but equally often between different branches of the right, such as law and order conservatives versus libertarians. There are wide differences among those on the right on such issues as the drug war, civil rights and liberties, privacy, immigration, free trade, and assertive/interventionist foreign policy., among many others. Meanwhile, in recent years, it has become more and more difficult to get anyone on the left to participate in many of our debates, particularly when the subject is an issue of quasi-religious significance to the left, such as climate change, gender, or race relations.
For a truly extreme example of what happens over there on the left when orthodoxy is breached even a little, you need to check out the letter just out from Allison Hill, CEO of the American Booksellers Association. Here’s the background. It seems that every month or so the ABA sends out to member book stores a box of materials, containing several books that the organization suggests stocking, as well as other promotional information from publishers. This month’s box contained, among other things, a copy of Abigail Shrier’s “Irreversible Damage,” and promotional materials for Candace Owens’s “Blackout” (with introduction by Larry Elder). Here is how the Washington Post introduces its July 16 story on the subject:
As soon as Casey Morrissey opened the box of books, they [sic] were furious. The title at the top of the stack was Abigail Shrier’s “Irreversible Damage: The Transgender Craze Seducing Our Daughters,” a contentious tome that has sparked cries of transphobia since its release last summer. “Do you know how that feels, as a trans bookseller and book buyer?” Morrissey, who works at Greenlight Bookstores in Brooklyn tweeted Wednesday. “It isn’t even a new title, so it really caught me in the gut. Do better.”
And then, says the WaPo, “a firestorm ensued.” And thus the letter from Ms. Hill of the ABA. Here is how it begins:
Dear Booksellers:
This week we did horrific harm when we included an anti-trans book in ABA’s July box mailing to members. Last week, we did terrible and racist harm when featuring the bestseller Blackout by Dhonielle Clayton, Tiffany D. Jackson, Nic Stone, Angie Thomas, Ashley Woodfolk, and Nicola Yoon with the wrong cover image, conflating it with an image of the cover of a book by a different Black [sic] author, a right-wing extremist. We traumatized and endangered members of the trans community. We erased Black [sic] authors, conflated Black [sic] authors, and put the authors in danger through a forced association. We further marginalized communities we want to support.
A truly epic grovel. Note that Ms. Hill is unable even to name the authors or titles of the two offending (conservative) books. It seems that even mentioning the title or author of such a book has become “horrific harm” or maybe “terrible and racist harm,” let alone “traumatizing” and putting authors “in danger through a forced association.” All I can think of is the confession of Zinovyev at his 1936 Stalin show trial.
Meanwhile, you will likely recognize the unmentionable Shrier and Owens books as important works and also as bestsellers. Both were released about a year ago — “Irreversible Damage” on June 30, 2020, and “Blackout” on September 15, 2020. By November, “Irreversible Damage” was ranked #15 in sales at Amazon among all books, and #1 in several categories, including Political Commentary & Opinion, Political Conservatism & Liberalism, and LGBT Demographic Studies. Owens’s “Blackout” rose to #1 at Amazon in the category Political Parties, and was #2 on the New York Times bestseller list among all non-fiction during October 2020. Also, Owens’s co-author, Larry Elder, is currently on the ballot in the recall election for Governor of California, and has a very decent chance of winning and becoming the Governor. (If Newsom gets less than 50% of the vote in the recall, then he is out, and the candidate among those to replace him who gets the most votes becomes Governor. Newsom is currently at 48% in the polls, and Elder leads all other potential replacement candidates by double digits.)
Yet somehow at the American Booksellers Association, these books cannot even be mentioned by name. Incidentally, it seems bizarre to me that the authors of the new “Blackout” think they have cause to be upset, when they chose to give their book the exact same title as a bestselling book by other black authors that had come out just a few months previously. (Owens’s book does have a subtitle.). And finally, how is the demeaning treatment of Owens and Elder by the ABA not racist.
If libertarianism wishes to give up modern political categories, it has to think about law in a different way. Murray N. Rothbard, the most important exponent of the radical libertarian school, is right when he rejects the historicism and relativism of legal realism and when—for the same reasons—he criticizes Hayek and Leoni.
But unfortunately, he does not really grasp the function of the evolution into classic natural law. Furthermore, his idea of building a libertarian code is completely inconsistent with his frequent references to the Greek and Christian legal heritage.1
In For a New Liberty, Rothbard points out that the history of a changing and evolving law can be useful in order to find just rules: “since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air.”2
But the relationship between common law and natural law must be seen differently. Common law is not only an interesting tool for discovering natural law: it has its specific role. Positive law needs to interact with natural law principles, but even the latter cannot be considered as self-sufficient.
Moreover, in his defense of rationality, Rothbard does not realize that law cannot be entirely read into the praxeological framework, which is axiomatic and deductive. The division of theory and history puts some disciplines into opposition with others, but above all it makes a distinction within any single field of study.
Economics, for instance, is a theoretical science if considered as political economics, but a historical and empiric activity if it analyzes what happened in the past.3 This is also true for legal studies, because they have a theoretical part but, at the same time, include many other aspects which, on the contrary, are historical and cannot be examined using logical and a priori methods.
In his methodological writings, Rothbard distinguishes between empiricism and experience, and remarks that the refusal of the first does not imply a devaluation of the second. When he criticizes Mises for his Kantian approach, he finds in human experience exactly the main source of the axioms, the fundamental truths that are the starting point of a theory based on deductive logic.4 But before the law, Rothbard seems to minimize the contextual and nontheoretical dimension of a large part of legal controversies and especially of positive law.
Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory, are a consequence of it.
Moreover, the way Rothbard deals with the arguments of causality and liability shows an inadequate understanding of the anthropology of the Austrian School, which moves from a study of human action (intentional and rational) and not by a simple behaviorist analysis.
In integrating Rothbardian libertarianism with positive law, an important contribution comes from Bruno Leoni, who in Freedom and the Law and other writings developed an original contribution to classical liberalism. The Italian scholar can help to improve some parts of Rothbard’s libertarian theory of law. If the author of The Ethics of Liberty is much more grounded in natural law and even less naïve before Wertfreiheit,5Leoni can correct some limits of the Rothbardian approach and its incapacity to perceive the specificity of law: a practical and largely empirical science, historically situated and essentially oriented to finding reasonable solutions for very specific cases.
If philosophy of law has to investigate the eternal and immutable principles of justice, juridical scholarship must find the best translation of these for the specific problems of a society. For this reason, taking Leoni seriously means imagining a meeting point of natural law doctrine and the requirements of a positive law as a reality in evolution. And it implies an effort to transfer into the legal context the Misesian methodology and its radical separation of theory and history: the sphere of axiomatic and deductive studies (praxeology) and the sphere of research based on experience (history).
We have to remember that specific attention to the historical and evolving features of legal orders has been a crucial element of the Austrian School since its origins. In his Investigations into the Method of the Social Sciences, Carl Menger praises the Historical School of Jurisprudence (Gustav Hugo, Friedrich Carl von Savigny, Barthold Georg Niebuhr), whose origins he dated back to Edmund Burke.
Menger also highlights the individualistic content of evolutionary law with the goal of helping the classical liberal tradition to rediscover its lost roots:
law, like language, is (at least originally) not the product in general of an activity of public authorities aimed at producing it, nor in particular is it the product of positive legislation. It is, instead, the unintended result of a higher wisdom, of the historical development of the nations.6
It is exactly in this sense that we can understand Leoni’s preference for evolutionary law (Anglo-Saxon law and Roman jus civile): a law not oriented to preserve tradition or spontaneous order per se. On the contrary, Leoni thinks that a polycentric and evolutionary order is in a better position to safeguard individual rights. Rules that emerge from the interpersonal exchange of claims are tools that can effectively protect society from the rulers.
As a student of English legal history, Leoni shows a strong interest in the common law of nature that was at the heart of Edward Coke’s perspective. In fact, in that theory law does not express an antirationalist attitude, but, on the contrary, embodies natural reason emerging in an evolutionary way. This legal culture is improved by various contributions (practical, pragmatic, professional) of many people. In this way, law is the consequence of a human activity oriented towards bettering reality using intelligence and experience.
Criticizing modern legal systems, Leoni remarks that
there is far more legislation, there are far more group decisions, far more rigid choices, and far fewer “laws written in living tables,” far fewer individual decisions, far fewer free choices in all contemporary political systems that would be necessary in order to preserve individual freedom of choice.7
Even if he never adhered to a consistent natural law theory, Leoni tried a sort of reconciliation of natural law and legal realism (positive law rightly understood), exploring the possibility of conjugating the flexibility of ancient common law and the just principles of a universal moral theory.
Leoni had a strong interest in the exploration of the libertarian potentialities of a similar perspective. In his writings, there are many elements of a radical libertarianism refusing any coercion. When some participants of the Claremont seminar about Freedom and the Law asked him who should choose the judges in a free society, he answered: “it is rather immaterial to establish in advance who will appoint the judges, for, in a sense, everybody could do so, as happens to a certain extent when people resort to private arbiters to settle their own quarrels.”8
In his opinion, the contemporary, statist system should disappear, leaving room for a competitive order of private courts. The convergence of Leoni and Rothbard is evident on many levels, because both imagine the end of the state monopoly on justice and security, with the purpose of opening the road to an institutional competition between people in charge to avoid criminal behaviors.9
It is also for this reason that Rothbardian libertarian theory can find in Leoni and, above all, in his understanding of law the way to overcome its theoretical and practical difficulties.
From Praxeology to Thymology: The Role of Positive Law
In its daily development, law refers back to principles, but at the same time it concerns modest but not negligible disputes. Legal reasoning lives essentially in this pragmatic context and it leaves the specific topics of natural law in the background.
In Mises’s thought, there is a notion that is extremely useful in helping us grasp the relationship between theory and practice in the law. In fact, in Theory and History, he opposes praxeology to thymology, which is in close relationship with history.10 Thymology is a branch of history and “derives its knowledge from historical experience.”11 It stands for that set of empirical knowledge of psychological, sociological and even factual character that we use to find our way in relationships with other people. This “literary psychology” is the condition of a rational behavior: “for lack of any better tool, we must take recourse to thymology if we want to anticipate other people’s future attitudes and actions.”12
When Leoni returns to the legal realism tradition (to the law in action that Roscoe Pound opposes to the law in books) and remarks on a correspondence between positive law and what is foreseeable (often using the formula id quod plerumque accidit),13 the highlights that the positive law is always intelligible in a thymologic perspective. In his explicit purpose of applying Misesian methodology to law, Leoni discovers a praxeological dimension (the most theoretical part, coinciding with the analysis of the individual claims and their interaction), but also another thymological dimension (entirely depending on experience, common opinions and traditions).
His idea is that positive law has a strong relationship with customs. As practical activity, law must reduce uncertainty: it is for this reason that a creditor’s claim is legal, because generally a debtor pays back what he has received, while the thief’s claim is illegal, because generally people do not steal. The probabilistic analysis is purely empirical, but it is not unreasonable. Our behavior is led very often by the rationality of our past experiences and by our prejudices.
In this sense, Leonian theory of the individual claim is at the same time praxeological and thymological.
It is praxeological because it draws in a deductive way the theoretical conditions of the exchange and the meeting of different individual claims. When, in his writings, he opposes the point of view of the legal professionals (moving from the norms) and the perspective of the philosophers (interested in the origin of the rules), his aim is to reject the positivism prevalent in legal theory.
He has the project of grasping the a priori categories—à la Reinach—subtending all legal orders. When he finds in the individual claim the starting point of a juridical relation, Leoni thinks he has understood a universal datum: his “demand and supply law.” If prices emerge from the meeting of the actions of people supplying and demanding, the norms are the effect of the interaction of different claims. This is a universal regularity and, on this ground, he also develops his theoretical (praxeological) remarks about the relationship between legislation and living law, certainty and law, and so on.
But—as in Mises—this positive evaluation of praxeology does not imply a negative opinion of history or of the competence of lawyers. On the contrary, Leoni has the ambition of describing the distinct but connected roles of every sphere.
For this reason, his theory is largely thymological when he remarks that, if it is true—as Mises says—that “thymology tells no more than that man is driven by various innate instincts, various passions, and various ideas,”14 then it is evident that norms are accepted when they satisfy the claims, the principles and the desires largely shared in a specific society; and the law professionals are exactly well-informed about this peculiar and “local” environment. When Leoni emphasizes the qualities of the jus civile and the ancient common law, he aims to highlight the role of the lawyers and of all the people engaged in the solution to specific and concrete disputes.
Positive Law and History
This is a very important point in a large part of the philosophical tradition. The main Greek and medieval thinkers were clear about the link between natural law (universal) and the contingent (historically defined and, lato sensu, subjective) dimension of situations that we can understand only in specific contexts, as result of the cross of individual preferences.
In Aristotle, for instance, it is clear that there are some universal principles judging every positive law. This passage is very outspoken in this regard:
Universal law is the law of nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles’s Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she says that it was just by nature.
At the same time, Aristotle holds the opinion that “there are two kinds of right and wrong conduct towards others, one provided for by written ordinances, the other by unwritten.” In the second group, a class “springs from exceptional goodness or badness” and it is related to honor, gratitude, friendship, and so on. But the other “makes up for the defects of a community’s written code of law. This is what we call equity.” This Aristotelian notion of equity is very important. And, at the same time, we have to perceive the relationship between this idea of equity (“the sort of justice which goes beyond the written law”) 16 and the idea of phronesis, as prudence and practical wisdom. Equity and phronesis do not destroy the universal natural law, but they give us a way to understand how it can be possible to arrange some (difficult) situations. We can build a bridge from the natural law and the positive law of our—imperfect—relationship with the others. The perception of the human limits and the complexity of the world push us to appreciate the knowledge preserved by a complex system of legal notions, as developed through centuries of legal history.
For Aristotle, it was clear that a purely deductive method would not suffice to satisfy our exigencies.
Aquinas’s lesson moves in the same direction, as is clear in his distinguishing between Natural Law (Lex naturalis) and Human Law (Lex humana). If the moral principles of natural law are unchangeable and can be rationally investigated by moving from some solid axioms, human law is the consequence of cultural and historic contingencies. As Summa Theologiae says, “the natural law contains certain universal precepts which are everlasting, whereas human law contains certain particular precepts according to various emergencies.” At the same time, “nothing can be absolutely unchangeable in things that are subject to change. And, therefore, human law cannot be altogether unchangeable.”17
Aquinas adds that “custom has the force of law, abolishes law, and is the interpreter of law.”18 He accepts customary law because it has the approval of individuals: “because, by the very fact that they tolerate it, they seem to approve of that which is introduced by custom.”19 This law that is dissolved in custom is not natural law, because Aquinas does not believe we can accept a legal order that has historically emerged if it is against justice; but historical evolution modifies positive law and even opens room for different interpretations.20
Law and Interpretation
In positive law, there is an essential function of interpretation, because there is always a distance between the norm and the cases in point. As Giorgio Agamben explains, “in the case of law, the application of a norm is no way contained within the norm and cannot be derived from it; otherwise, there would have been the need to create the grand edifice of trial law. Just as between language and world, so between the norm and its application there is no external nexus that allows one to be derived immediately from the other.”21
What’s the meaning of this? Using general rules in concrete and specific situations always implies a decision, and (at least hypothetically) an arbitrary power. The difference between the law in the books and the law in action is largely a consequence of this.
In many writings, Chaïm Perelmen remarks that legal logic is:
a very elaborated, individual case of practical reasoning, which is not a formal demonstration, but an argumentation aiming to persuade and convince those whom it addresses that such a choice, decision or attitude is preferable to concurrent choices, decisions and attitudes.
Perelman adds: “what characterizes an argumentation is its non-constraining character.”22 So, legal reasoning “is not presented as a formally valid deduction from non-temporal truths,” because “reasons considered good at one period of time or in one milieu are not in another; they are socially and culturally conditioned as are the convictions and the aspirations of the audience they must convince.”23
In spite of his disputable skepticism, Perelman is right when he points out that positive law is a “practical” activity, because it is a case-solving operation and often emerges from a transaction of different interests. To a large extent, law is not a science: it is a technique oriented to solving specific problems, because lawyers and judges do not search for the truth, but only the legal truth.
Law and Intentionality
If we analyze liability and causality in Rothbard, we have to recall the fundamental principles of the Austrian tradition.
In a recent article, Hans-Hermann Hoppe criticized his mentor and highlighted how it is contradictory to focus attention on the birth of property (with the homesteading of land) and then to exclude it, accepting a strict liability theory whose positivist and behaviorist origins are evident. Hoppe remarks that “homesteading implies intent,” a subjective element; on the contrary, Rothbard’s theory of causation and liability ignores this aspect.24Austrian School scholars emphasize the role of intentionality as a crucial element at the moment of the origin of private property and of its negation (theft, aggression, etc.).
Not all physical invasions imply liability and, to the contrary, some actions are liable even if there is no physical invasion. In economics, Rothbard was perfectly aware of this and was always very critical of economic schools with positivistic leanings. In 1985, in the preface to Theory and History by Mises, he attacks mainstream positivism, remarking that “to become truly scientific like physics and the other natural sciences, then, economics must shun such concepts as purposes, goals and learning: it must abandon man’s mind and write only of mere events.”25 But the main mistake of the American scholar is in analyzing only simple events, avoiding the problem of intentionality and subjective liability, and the consequent need to understand a specific action—made by a particular person, in that one moment and context.
Hoppe is right when he notes a contradiction in Rothbard between this theory of strict liability and the defense of homesteading, which implies another vision of ethics and a different anthropology. When Rothbard condemns as aggression the act of a man claiming and occupying a land previously “homesteaded” by other people, his arguments call for a well-defined idea of morality that it is not consistent with that oversimplified and behaviorist theory of causality and liability.
An Aristotelian-Thomist Libertarianism
For all these reasons, the Thomist distinction between natural law and human law is fundamental, especially if by lex humana we do not conceive of the state law, but our ever-imperfect translation, into norms, of our aspiration to live in a just society. As Paul Sigmund correctly remarked, “human law is the application to specific circumstances of the precepts of reason contained in the natural law.”26 This mediation is always unsatisfying, but at the same time necessary.
Rothbard and Perelman make the symmetrically opposite mistake, because neither admits the autonomy of natural law and positive law. If Perelman reduces natural law to positive law (and reason to reasonableness), Rothbard reduces positive law to natural law (and reasonableness to reason). However, we have to admit the existence of a higher and objective dimension of law (where the rational method of Rothbard is justified) and of a much more prosaic and lower level, which can obtain many advantages from the dialogical and rhetorical approach used by Perelman.
The awareness of the need to mediate between the a priori principles of natural law and a largely inductive knowledge of the legal experience is not always present in Rothbard. But that’s why the intellectual heritage of Leoni can be useful in the attempt to develop a libertarian legal theory aiming to protect the dignity and freedom of the individual.27
If, in Rothbard, there is the risk of ignoring the specificity of legal reasoning, Leoni remarks on the empirical features of the law and adopts a Misesian standpoint in putting into the right perspective human experience and the role it plays in the practical unfolding of our existence.
Leoni perceives the importance of the positive law, also in a libertarian and antistatist perspective. The vision of what is just by nature has to be rooted in a particular time, embodied in specific institutions and recognizable in many different situations. But the Italian thinker was quite aware that this proposal was a return to the old tradition of natural law. In a very interesting passage, he criticizes Kelsen, saying that sociology of law is “the modern heir of the natural law.”28 And he specifies his idea in this way:
contemporary sociology of law schools can be considered, in a limited sense, and without the derogatory features used by Kelsen, the “modern heirs of natural law,” exactly because they are inclined to re-evaluate in “law” the element of the “persuasions” leading the action of people, instead of the “legal order” conceived as dogmatics did.29
Conclusion
In spite of his positivism, Leoni can help us grasp the true nature of classical natural law, because he does not prospect for a “libertarian code” like the one envisioned by Rothbard, somewhat conceived on the model of the state legal systems. On the contrary, Freedom and the Law can be the starting-point for a more “classical” understanding of libertarian natural law actually rooted in the Aristotelian-Thomistic tradition. If we return to the classics, we can better understand the main problems.
In other words, in Leoni there is a wide scope for juridical research and for historical evolution, because of his belief in a living law in continuous and close interaction with reality. The legal order has some “essential” elements, but it changes through time, and for this reason it requires constant and challenging work to adjust rules and behavior.
Thomist rationalism moves from the awareness of reason’s limits. Sigmund highlights exactly this when he says that “Aquinas’s system of natural law is and must be incomplete. He could not admit the Aristotelian possibility that nature could provide fully for man’s fulfillment.”30 Rothbard himself is not far from this when he points out that a rational approach needs an understanding of the structural imperfection of our minds: “No man is omniscient or infallible—a law, by the way, of man’s nature.”31 But this observation has to have significant consequences for legal theory.
Originally published November 5, 2009.
1.The notion of code—in despotic Prussia as well as in Napoleonic France—was connected to the needs of a sovereign power oriented to absorbing the legal order and changing any norm in a simple political decision.
3.See Ludwig von Mises, Theory and History (Auburn, Ala.: Mises Institute, 1985).
4.See Murray N. Rothbard “In Defense of ‘Extreme Apriorism’,” The Logic of Action One (London: Edward Elgar, 1997), 100–08. Exactly in this sense Larry Sechrest outlines that a “careful examination of Austrian thought will reveal that the praxeological method itself is fundamentally empirical.” See Larry J. Sechrest, “Praxeology, Economics, and Law: Issues and Implications,” Quarterly Journal of Austrian Economics 7, no. 4 (Winter 2004): 22. In the Aristotelian-Thomist tradition, experience is a source of knowledge: we meet the world (which is common to all us) and we have experiences with a meaning. Rothbard shares this perspective when he distinguishes his position and that of Mises. For this reason, Sechrest opposes Hoppe (and Mises) because of their Kantianism and shares the Rothbardian perspective, embracing the project of “positing an empirical base for the Austrian School.” Ibid., 23.
5.ee, in particular, Murray N. Rothbard, “The Symposium on Relativism: A Critique,” 1960, memo conserved in the Ludwig von Mises Archives, now in Murray N. Rothbard, Diritto, natura e ragione. Scritti inediti versus Hayek,
9.The notion of polycentric order—as it has been formulated by Michael Polanyi—can be useful to appreciate the complexity of a system based on checks and balances and operating without a written constitution imposed by an authority. Polanyi points out that the invisible hand pushing towards a free-market order is not so different from the forces defining common law and scientific research. The progress of knowledge is grounded on the principles that “every proposed addition to the body of science is subjected to a regular process of scrutiny.” We find a similar logic in the legal order, because common law “constitutes a sequence of adjustments between succeeding judges, guided by a parallel interaction between the judges and the general public.” Michael Polanyi, The Logic of Liberty (Chicago: University of Chicago Press, 1980), pp. 162–63.
10.Following Mises, “thymology is a historical discipline.” Mises, Theory and History 313.
17.Saint Thomas Aquinas, On Law, Morality, and Politics , William P. Baumgarth and Richard J. Regan, eds. (Indianapolis-Cambridge: Hackett Publishing Company, 1988), 77.
19.Ibid., 81. As Anthony Lysska has pointed out, Aquinas “was aware of cultural diversity regarding mores.” Anthony J. Lysska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction (Oxford: Clarendon Press, 1996), 112.
20.In the latest development of his theory, Leoni introduced an interesting notion when he spoke about the a-legal claims (in Italian, pretese agiuridiche). Thus, we have not only legal and illegal claims, but also some claims not completely accepted today, that in the future might be considered lawful and legitimate. See Bruno Leoni, “Appunti di filosofia del diritto,” in Il diritto come pretesa (Macerata: Liberilibri, 2004), 200.
21.Giorgio Agamben, State of Exception (Chicago: The University of Chicago Press, 2005), 40.
22.Chaïm Perelman, Justice, Law and Argument. Essays on Moral and Legal Reasoning , with an Introduction by Harold J. Berman (Dordrecht: Reidel, 1980), 129.
26.Paul E. Sigmund, Natural Law in Political Thought (Cambridge Mass.: Winthrop, 1971), 39; the italics are mine.
27.n this sense, natural law has to be ever conceived in a strict relationship with the contingency of social reality. If all were governed by destiny, there would be no room for natural law (because its normative features imply human liberty). But at the same time it is true that the ever-changing character of social relationships forces natural law to have a specific link with history.
28.Bruno Leoni, Lezioni di filosofia del diritto (Soveria Mannelli: Rubbettino, 2004), 160.
29.Bruno Leoni, “Oscurità ed incongruenze nella dottrina kelseniana del diritto,” in Scritti di scienza politica e teoria del diritto (Milan: Giuffrè, 1980), 202.
30.Sigmund, Natural Law in Political Thought , 46.
Carlo LottieriCarlo Lottieri is an Italian political philosopher with the University of Siena and Istituto Bruno Leoni whose main interests are in contemporary libertarian thought. Most recently he edited an anthology of writings by Bruno Leoni.
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As I noted a couple of weeks ago, the largest national teachers’ unions—the National Education Association and the American Federation of Teachers—have essentially declared war on parents and students, doubling down on Critical Race Theory and the “LGBTQ+” agenda while continuing to advocate for forced masking and vaccination of children.
In that column, I called on teachers of good will, true allies of students and parents, to abandon the unions and stop paying dues, which is tantamount to supporting their agenda. The battle lines have been drawn. They are either with us or against us.
So much for teachers. But what about parents? How can they fight the unions?
Perhaps, as a parent, you can’t directly “defund” them, the way teachers can just by leaving, but there certainly are steps you can take that will have a long-term positive impact.
The most obvious, for those in a position to do so, is simply to take your kids out of the public schools. Fewer students equal fewer teachers, shrinking the pool of potential union members and lessening the groups’ power. Plus, your kids won’t have to deal with unionized teachers because they will no longer be in their classrooms.
Unfortunately, this solution presents problems of its own. As I’ve observed elsewhere, not everyone can afford private schools, which in some cases aren’t much better than the public schools anyway. And not all families are able to home school. Another possibility that I’ve been advocating involves creating affordable, community-funded private schools, but that hasn’t caught on yet.
The upshot is that many kids, at least for now, are stuck in the public schools. If you’re in that situation as a parent, what can you do to fend off the assault on your children from unionized (or union-affiliated) teachers?
First, you can get involved. Attend school board meetings and speak out against injustice and bad educational practice—as many parents are already doing all over the country. If you’re not part of this movement, join. Make your voice heard, in public meetings, emails to elected officials, letters-to-the-editor, and social media posts. If you’re not sure what to do or how to go about it, search Facebook for a group of like-minded parents in your area.
Second, it is absolutely imperative that you teach your values at home. Refuse to cede one iota of your parental authority and responsibility to the schools. Do not let teachers raise your children or teach them morality. That’s your job.
As much as possible, spend time daily with your kids. (The evening meal provides an excellent opportunity.) Ask them about their day and what they’re learning at school. If they’re being taught things that aren’t true—such as that all white people are racist or that some girls have penises—calmly explain why that’s wrong. (If possible, try not to completely undermine the teacher, whom you still need to teach math and reading).
Also, be sure to keep close tabs on your child’s curriculum. Spend time weekly on the class’s website. Look carefully at anything that’s sent home. Review their reading assignments. Once again, if you find something questionable, you will have the opportunity to counter it. And if something is truly objectionable, you can email or schedule a conference with the teacher to politely express your disagreement and displeasure. (Getting angry with these people rarely works. It just reinforces their prejudices. That said, there are times to get very angry indeed.)
Speaking of your child’s teachers, be sure to hold their feet to the fire. Both the NEA and the AFT have vowed that their members will continue teaching Critical Race Theory even in districts where it’s banned. They do not have that right. If you live in one of those areas, and you find your child’s teacher is flouting the rules, it’s time to involve the school’s administration—or even local politicians.
You can even be proactive. Before the school year starts, find out if your child’s teacher(s) is/are union members. (In right-to-work states like Georgia, where I live, the unions are often called “associations.” People will say, when I bring this up, “We don’t have teachers unions in Georgia.” That’s not entirely true. Teachers in Georgia and other RTW states might not be represented by unions in contract negotiations, but they can still join and pay dues—the NEA, for instance, boasts over 30,000 members in the Peach State—and in doing so, support the union’s agenda.)
If your child’s teacher belongs to the NEA or AFT, you could simply file that information away for future reference. Or you could go a step further and write to the teacher, at the beginning of the school year, to let him or her know that you know, that you will be keeping a close eye on what happens in the classroom, and that you object to your child being taught racism or sexual perversion.
You could even request that your child be transferred out of that class, although most principals would probably not accede to such a request, and the alternatives might not be any better. Still, it fires a shot across their bow, letting them know you will not be a passive by-stander in your child’s education.
Just understand that those last two suggestions could be considered preemptive attacks. There might be repercussions for your child, who could face discrimination from the teacher or even the administration. You’ll have to decide how far you’re willing to go—or how far you believe you need to go to protect your child.
But the bottom line is that, as a parent, you are not powerless. You can fight back. You can make your voice heard. You’re still the most influential person in your child’s life, and both individually and collectively, parents can, and should, have a great deal of control over what goes on in their local schools.
The evidence is now overwhelming that we have been systematically and intentionally lied to by “public health agencies” that in reality are captured regulatory bodies serving the interests of Big Pharma, by an incompetent and indoctrinated medical profession, by politicians, and by scum presstitutes.
Many highly credible experts have warned repeatedly about the official responses to the “pandemic” and were censored. Those who stifled the warnings are mass murderers who should be arrested, indicted and put on trial.
Countries with the highest percentage of their populations vaccinated are the countries experiencing the highest rates of new “breakouts.” These are breakouts of illnesses from the vaccine itself.
This information is suppressed by the scum presstitutes, by the illegitimate Biden Regime, by a Big Pharma indoctrinated medical profession, and by shills for Big Pharma.
As for the origin of what conservatives are calling the “Chinese virus,” evidence shows it was a virus developed by NIH funding, first at UNC and then at the Wuhan Lab. The story seems to be this:
Fauci was funding it at UNC, but people aware of the research raised red flags because it trespassed on the Biowarfare Convention. Fauci switched the funding to China and routed the Wuhan funding through a third party; thus his claim that he did not finance it. Some Senate Republicans are talking about a criminal referral of Fauci. Of course, it won’t do any good as the DOJ won’t go after a Democrat hero.
The patent expert whose video interviews I posted proves that the US has been working on the virus for two decades or longer. There seems no doubt that it was an American project. The question is how was it released. Some who give it much thought think it was an intentional release to create a case for mass inoculation, and that it was released first in China to have a party to blame.
Consider the extent of evil prevalent when trusted persons and organizations initiate widespread death and injury in order to serve private agendas.
Liberals assured us that good vs. evil is a false dichotomy, and we put our guard down. Now we are paying the price.
The entire justification for the U.S. government is its willingness to uphold individual rights, specifically the Bill of Rights.
It’s the whole moral justification for any proper government: to UPHOLD the inalienable rights of the individuals within a society. Government exists for the sake of the people; NOT the other way around. That was the exact premise of America’s original Constitution and Bill of Rights. That is the polar opposite of today’s governing regime in Washington, DC, and in most of our states.
When a U.S. President and Congress use executive orders to replace legislation; openly threaten peaceful citizens with the full force of the military, including nuclear weapons, should they resist forthcoming gun confiscation (as Biden has done); openly spy on the social media posts of private citizens and order the companies who sponsor those posts to censor them; shut down virtually all human activity (with the exception of large corporations) whenever the flu breaks out, or whenever they feel like declaring an “emergency”; pass laws nationalizing all procedures in state and local elections to favor only one party; and force people to subsidize government schools and universities that actively teach in favor of tyranny and overthrowing the whole concept of the Bill of Rights … this is way, way more than enough to conclude that government has lost any claim of its legitimacy.
Somebody has to say it. We can’t go on like this, and it’s really the Patriots, the conservatives, the (authentic) Republicans, the individualists, the liberty-lovers and the libertarians who must face the truth. The left is getting everything it wants, and need not face any consequences of any kind — other than the evil and irrationality of their own depraved views, something most of them will never do.
Most of the good guys, for now, put their hopes in the next two election cycles, restoring Donald Trump to the Presidency in 2025, to the promise of God, faith, country, the flag and all the rest. I sincerely wish everyone well with these goals. But at least in the back of your minds, you have to accept what will happen if none of this works, and if the bad guys keep winning every single cultural and political battle — as they have, to date.
The illegitimate Occupant of the Oval Office Continues to Spread Disinformation Designed to Cause People to Damage their Health and perhaps Terminate their Lives by having the Covid shots. The claim that doctors and nurses are all vaccinated is a lie. A survey conducted by the Association of American Physicians and Surgeons found that 60% of doctors are not vaccinated: https://www.globalresearch.ca/majority-us-physicians-decline-covid-shots-according-survey/5748266
There have been many news reports of US medical personnel resisting mandated vaccination by employers and resigning to avoid it. The same in Europe. Here is a report of a French hospital going on INDEFINITE strike to protest a Covid-19 vaccination mandate. The strike against forced vaccination was announced on Thursday by the CGT-GHPP trade union, and affects some 200 doctors and 1,500 nurses in the southeastern French city of Montelimar: https://www.rt.com/news/530095-hospital-strike-france-mandatory-vaccine/
The High Number of Covid Cases Is a Fabrication Obtained by Intentionally Conducting the PCR Test at High Cycles that Invalidate the Test. This was not a mere mistake. It was an intentional act in order to spread fear to create an eager market for an untested and unapproved experimental technology. The World Health Organization is now having afterthoughts as this headline indicates—The WHO Confirms that the Covid-19 PCR Test is Flawed: Estimates of “Positive Cases” are Meaningless. The Lockdown Has No Scientific Basis: https://www.globalresearch.ca/nucleic-acid-testing-technologies-use-polymerase-chain-reaction-pcr-detection-sars-cov-2/5739959
The Covid mortality reports are also faked as this court ruling in Lisbon, Portugal revealed. Ruling on the evidence, the court found that the actual number of verified deaths due to Covid alone during the period from January 2020 to April 2021 was 152, not 17,000 as government ministries claimed. The other deaths were for other reasons but were labeled Covid because of the PCR test that WHO now admits gave false positives.
As AndreDias.net says, “We live in a fraud of unprecedented dimensions.”
Efforts are underway to cut through the fraud and to get at the truth. A federal district court has ordered NIH to release the Moderna safety data from Moderna’s Covid vaccine trials that Tony Fauci has been hiding.
THE ARTFUL DILETTANTE 