Recently (finally, after years of professing to being an anarcho-capitalist!), I began to read David Friedman's now classic book The Machinery of Freedom (the 3rd edition). Starting from the fourth paragraph, this note contains some of my reflections and comments from engaging the text, with the intent of soliciting David's public response, for the benefit of broader edification. At this point, it important to insert a personal caveat lector to David and others : if you happen to read this, thank you in advance! Also, forgive me if some of the rhetoric used below sounds combative and less than generous, since that was not my intent! David Friedman is one of the greatest teachers our generation is blessed to have, and any combative rhetoric below is to be strictly taken as good-humored jousting and riparte. Once this note is complete, I will remove the tag from the title indicating that this is a draft. Incidentally, I had the opportunity of speaking at length with the author many months ago, circa January 2020, at a random coffee-shop meetup of the local LP. I did not recognize him (in fact, in the context of the meetup, he had simply introduced himself as "David") and I spent some time presenting myself as being much more inclined toward the Austrian/Misesian/Rothbardian school as opposed to the Chicago/Friedman school! I also had regarded the former to be based on natural rights or deontological ethics and the latter to be utilitiarian or consequentialist (now I think these are superficial characterizations at best or, quite likely, category errors). After a while, I asked him where he worked and found out that he was none other than the legend! He did not care to relish my visible embarrassment and calmly invited me to his home for another meetup the following weekend. My family and I attended and thoroughly enjoyed his hospitality, varied interests and the general company.
On the whole, the book's approach to explaining how anarcho-capitalist institutions might function is quite elegant and aesthetically pleasing and, dare I say, praxeological, at least starting from the 28th chapter. The first portion (chapters 1 - 27) is indeed econometric in style and substance and adopts a gradualist stance of getting to there from here. While I struggled with getting through that initial portion, since I do not find those lines of thought aesthetically compelling, I am glad I stuck through it, since it suddenly changes tone and becomes riveting, starting in Chapter 28. A very illuminating insight I gained is the idea that anarcho-capitalism is not merely synonymous with libertarian law -- and, rather, that the question of whether an anarcho-capitalist, private law society will necessarily lead to a libertarian legal order, is a non-trivial question worthy of deeper investigation. I also agree with his judgement that education and alternative-institution building, as opposed to political means, are the best means to move the world away from the State and toward anarchic/agorist order.
In Chapter 41 ("Problems"), he brings up many problems that seem to arise from the continuum problem of property boundaries in space and time. I think at least some of his concerns have been since addressed, based on concepts like the differences between morality and ethics, easement rights and the impossibility of original appropriation by fiat declaration, by others (like Walter Block and Duncan Whitmore, among others) and he may not be entirely aware of the suggested resolutions. I am by no means an expert here and I do not have my references in order, so my responses will not be technically precise and I will be mis-remembering the details. Regardless, I will try. I will also later try and define terms like "easement", "ethics", "morality", "appropriation", etc. and/or will cite references if/when I find them again. Without any further ado, let us dive right in.
If Alice turns on a light in her home and it emits photons that crosses over into Bob's property, Alice is indeed liable for damages, from a purely theoretical perspective, if indeed Bob owned their own property before Alice moved in as a neighbor and Bob previously enjoyed the natural easement of having no photons of said intensity emanating from the point of origin that is now newly in Alice's property. That is worth reading twice, if only to make it clear that, in this hypothetical, we are not dealing with a Bob who moved in later, since then, it is Alice who previously originally appropriated and enjoyed the easement of emanating said photons with said intensity from that point in space. So, if indeed newcomer Alice violates Bob's existing easement of not having said photons enter his space, then Bob does have the right to sue Alice for damages and prove his prior easement, and, if having chosen to do so, receive the restitution of asking Alice to cut it out or force her to build a light blocking wall in the direction of Bob. I cannot any more strongly emphasize that this is a theoretical analysis of the situation from a libertarian legal framework. As Friedman states, he is not, and neither am I here, making any claims about morality (although, he seems to conflate that with ethics, which leads him to face other understandable problems in his commentary, a point which I may return to later). Furthermore, the above hypothetical is just that -- a hypothetical, and one that stretches imagination and suspension of disbelief quite a bit. Having the right to property (in whole, or as easements) does not mean that one is obligated to strictly enforce all of it, all of the time. A libertarian analysis will tell us what should happen in court. But, there is no need to mightily wrestle with court cases that do not normally or customarily occur in the real world.
On the question of risk, Friedman is correct in that the living of natural life involves the risk of inadvertently violating others' life or property. Friedman cites the risk-laden action of flying a plane. Libertarianism is not concerned with outlawing such risk. Rather, to repeat myself, it is focused on providing a legal framework for identifying liability if and when such a risky event results in the small-probability dismal outcome (airplane crashing onto you from above). Libertarianism outlaws the excusing of liability on the basis of considerations of expediency, desperation, etc. in a court of law, if and when a case is brought.
On page 166, it states :
If land starts out belonging equally to everyone, I somehow lose my right to walk on it as a result of your loudly announcing that it is yours
There are several errors here. Land and any natural resource, if heretofore unowned, does not belong equally to everyone; rather, it belongs to no one. Secondly, loud fiat declarations are not means of original appropriation of property. If Bob had been walking a trail long before Alice enters the scene for the first time, there is actually no way of ever unilaterally preventing Bob from relinquishing his original easement right of walking such trails even if surrounding lands were bought up. Alice could pay Bob or Bob could ignore this easement -- but, those actions happen outside a court of law and are therefore of no interest to libertarianism. However, if a piece of land was fully unowned and no one had established an easement on any of it, then, it can be appropriated by encirclement and mixing of one's labor. A second comer now truly does not have a enforceable right to walk these lands. Again, what rights will be enjoyed and what rights will be relinquished is of no concern to libertarian legal theory -- which is only concerned with what rights ought to be enforced in the event of a disagreement and dispute.
In the next section, Friedman bemoans the inadequacy of libertarian theory in solving the problem of the degree of certainty required for convictions and the amount of damages. I find this interesting since none other than Friedman himself has suggested the way out of this quandary -- different courts have different standards for both of those questions and the plaintiff and defendant choose the court agreeable to both of them, such that the question of determining the exact percentage of certainty required and the exact amount of damages extracted is something that other third parties need not sweat about.
Next, we arrive at the question of what to do about the madman with the rifle. Here, Friedman's confusion and conflation of morality and ethics comes to a fore. Ordinarily, the moral action for Heroic Harry is to steal (yes, steal) the rifle from Misanthrope Max and stop the madman. Heroic Harry is lauded far and wide. Misanthrope Max is angry. Up until this point, libertarianism does not need to enter the picture. Now, let us hypothesize that Max decides to enforce his claims. Then, if the amount was not trivial for his agent (but, why would that be?!), the agent reaches out to Harry and requests a part or a whole (again, we need to assume that this agent is happy losing reputation as being the one company to sour the recent local hero). On failing to pay, we again have to assume that the agent takes Harry to court -- in this remote possibility, libertarian analysis finally enters the scene to find for Max's agent, since no amount of moral action or heroism absolves Harry from strict liability for theft. But, behold the series of assumptions made to get this story to court! In addition, after our players leave the court scene, are we to now assume that the scores of folks Harry saved will now not contribute to Harry's fees and damages owed? Granted, this is outside the subject of libertarianism; but, life itself is larger than libertarianism and it is therefore instructive to flesh out hypotheticals from many different angles, and not just exclusively a legal/ethical one, to gain the relevant insights.
The next few pages outline a national defense scenario, where Friedman continues to wrestle with the implications of using the non-aggression principle (NAP) as an inviolable principle for moral action. He tries to help "us" get past these seeming problems by framing it in consequentialist/utilitarian terms and suggesting that reducing coercion might be a more workable goal. Yet again, this struggle is the outcome of treating the NAP as an axiom of moral action. Now, it is certainly true that the NAP can often be fruitfully used as a heuristic for moral action. I have used it myself on various occasions. However, that is not its purpose. It is not an inviolable principle for moral action as Friedman, here, and others assume — rather, it is an inviolable principle for moral laws and judicial judgments in the event of a dispute and disagreement and is useful for the purpose of post-hoc and retrospective analysis of crime and determination of liability.
Next, we move to the impending asteroid world annihilation problem. There, Friedman correctly rebuts two counter-attacks to his position that some libertarians have tried (the victim either does not know enough and would have wanted you to take the device or your own beliefs might be wrong). Those are indeed non-arguments if Friedman's premises are correct. In fact, those attempted counter-attacks also assume Friedman's premise -- which is that the NAP is an axiom for moral action. The problem is that this premise assumed by both Friedman and his detractors is wrong. Again, the resolution, which should by now be clear to all reading, is simple : the moral action is to steal and save the world. The subsequent moral action, assuming that the victim presses charges, is for the moral hero thief to accept full liability.
In the next chapter, Friedman presents utilitarianism as a potential basis for moral action, evidently as an alternative to coercion minimization. I find this strange since both (average happiness maximization and average sadness minimization) appear the same to me, in kind if not in degree. In any case, I have no problems with the utilitarian approach, from the perspective of adding it to the set of heuristics that individuals may use to guide moral action. To beat a horse that is now dead many times over, that has nothing to do with libertarianism -- NAP is the moral rule in the limited domain where it is applicable -- namely, courts of law (i.e. dispute resolution).
After having rebutted a strawman caricature of libertarianism (i.e. no coercion as an absolute moral rule) using utilitarian arguments, Friedman then points out using a convincing example that he is not a strict utilitarian either. He simply believes it to be better than his caricature of the alternative, and believes it to be rhetorically more useful, at least for someone like him, who specializes in economics rather than moral philosophy. Fair enough.