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NOTE 12. Self-Defense

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CHAPTER 12 SELF-DEFENCE

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If every man has the absolute right to his justly held property, it then follows that

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he has the right to keep that property, to defend it by violence against violent invasion.

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Absolute pacifists who also assert their belief in property rights, such as Mr. Robert Lefebvre,

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are caught in an inescapable inner contradiction.

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For if a man owns property and yet is denied the right to defend it against attack, then

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it is clear that a very important aspect of that ownership is being denied to him.

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To say that someone has the absolute right to a certain property but lacks the right

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to defend it against attack or invasion is also to say that he does not have total right

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to that property.

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Furthermore, if every man has the right to defend his person and property against attack,

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then he must also have the right to hire or accept the aid of other people to do such

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defending.

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He may employ or accept defenders, just as he may employ or accept the volunteer services

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of gardeners on his lawn.

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How extensive is a man's right of self-defense of person and property?

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The basic answer must be up to the point at which he begins to infringe on the property

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rights of someone else, for in that case his defense would in itself constitute a criminal

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invasion of the just property of some other man, which the latter could properly defend

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himself against.

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It follows that defensive violence may only be used against an actual or directly threatened

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and invasion of a person's property, and may not be used against any non-violent harm that

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may befall a person's income or property value.

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Thus suppose that A, B, C, D, etc., decide for whatever reason to boycott the sales of

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goods from Smith's factory or store.

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They picket, distribute leaflets and make speeches, all in a non-invasive manner, calling

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on Everyone to Boycott Smith. Smith may lose considerable income, and they may well be

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doing this for trivial or even immoral reasons. But the fact remains that organizing such

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a boycott is perfectly within their rights, and if Smith tried to use violence to break

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up such boycott activities, he would be a criminal invader of their property. Defensive

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Invasive violence, therefore, must be confined to resisting invasive acts against person

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or property.

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But such invasion may include two corollaries to actual physical aggression, intimidation

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or a direct threat of physical violence, and fraud, which involves the appropriation of

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someone else's property without his consent and is therefore implicit theft.

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Thus, suppose someone approaches you on the street, whips out a gun and demands your wallet.

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He might not have molested you physically during this encounter, but he has extracted

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money from you on the basis of a direct overt threat that he would shoot you if you disobeyed

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his commands.

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He has used the threat of invasion to obtain your obedience to his commands, and this is

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equivalent to the invasion itself.

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It is important to insist, however, that the threat of aggression be palpable, immediate

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and direct.

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In short, that it be embodied in the initiation of an overt act.

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Any remote or indirect criterion, any risk or threat, is simply an excuse for invasive

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action by the supposed defender against the alleged threat.

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One of the major arguments, for example, for the prohibition of alcohol in the 1920s was

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that the imbibing of alcohol increased the likelihood of unspecified people committing

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various crimes.

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Therefore, prohibition was held to be a defensive act in defense of person and property.

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In fact, of course, it was brutally invasive of the rights of person and property, of the

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right to buy, sell and use alcoholic beverages.

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In the same way, it could be held that a. the failure to ingest vitamins makes people

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more irritable, that b. the failure is therefore likely to increase crime, and that therefore

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c. everyone should be forced to take the proper amount of vitamins daily.

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Once we bring in threats to person and property that are vague and future, that is, are not

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overt and immediate, then all manner of tyranny becomes excusable.

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The only way to guard against such despotism is to keep the criterion of perceived invasion

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clear and immediate and overt.

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For in the inevitable case of fuzzy or unclear actions, we must bend over backwards to require

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the threat of invasion to be direct and immediate, and therefore to allow people to do whatever

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In short, the burden of proof that the aggression has really begun must be on the person who employs the defensive violence.

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Fraud as implicit theft stems from the right of free contract, derived in turn from the rights of private property.

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Thus, suppose that Smith and Jones agree on a contractual exchange of property titles.

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Titles. Smith will pay $1,000 in return for Jones's car. If Smith appropriates the car

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and then refuses to turn over $1,000 to Jones, then Smith has in effect stolen the $1,000.

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Smith is an aggressor against $1,000 now properly belonging to Jones. Thus failure to keep a

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The contract of this type is tantamount to theft, and therefore to a physical appropriation

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of another's property fully as violent as trespass or simple burglary without armed

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assault.

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Fraudulent adulteration is equally implicit theft.

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If Smith pays $1,000 and receives from Jones not a specified make of car, but an older

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The reason why contracts are enforceable is that breaking such contracts involves an implicit theft of property.

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Those contracts which do not involve implicit theft should not be enforceable in a libertarian society.

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Suppose, for example, that A and B make an agreement, a contract, to get married in six months.

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Or that A promises that, in six months' time, A will give B a certain sum of money.

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If A breaks these agreements, he may perhaps be morally reprehensible, but he has not implicitly

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stolen the other person's property, and therefore such a contract cannot be enforced.

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To use violence in order to force A to carry out such contracts would be just as much a

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criminal invasion of A's rights as it would be if Smith decided to use violence against

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Simple promises, therefore, are not properly enforceable contracts, because breaking them

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does not involve invasion of property or implicit theft.

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Debt contracts are properly enforceable not because a promise is involved, but because

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the creditor's property is appropriated without his consent, that is, stolen, if the debt

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is not paid.

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Thus, if Brown lends Green a thousand dollars this year in return for the delivery of eleven

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hundred dollars next year, and Green fails to pay the eleven hundred dollars, the proper

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conclusion is that Green has appropriated eleven hundred dollars of Smith's property,

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which Green refuses to turn over, in effect, has stolen.

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This legal way of treating a debt, of holding that the creditor has a property in the debt,

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should be applied to all debt contracts.

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Thus it is not the business of law, properly the rules and instrumentalities by which person

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and property are violently defended, to make people moral by use of legal violence.

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It is not the proper business of law to make people be truthful or to keep their promises.

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It is the business of legal violence to defend persons and their property from violent attack,

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from molestation or appropriation of their property without their consent.

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To say more, to say for example that mere promises are properly enforceable, is to make

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an unwarranted fetish of contracts while forgetting why some of them are enforceable, in defense

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of the just rights of property.

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Defense then must be confined to violent invasion, either actually, implicitly or by direct and

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overt threat.

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But given this principle, how far does the right of violent defense go?

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For one thing, it would clearly be grotesque and criminally invasive to shoot a man across

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the street because his angry look seemed to you to portend an invasion.

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The danger must be immediate and overt, we might say, clear and present, a criterion

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that properly applies not to restrictions on freedom of speech, never permissible if

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we regard such freedom as a subset of the rights of person and property, but to the

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right to take coercive action against a supposedly imminent invader.

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Secondly, we may ask, must we go along with those libertarians who claim that a storekeeper

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Whoever has the right to kill a lad as punishment for snatching a piece of his bubblegum?

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What we might call the maximalist position goes as follows.

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By stealing the bubblegum, the urchin puts himself outside the law.

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He demonstrates by his action that he does not hold or respect the correct theory of

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property rights.

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Therefore, he loses all of his rights, and the storekeeper is within his rights to kill

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the lad in retaliation.

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I propose that this position suffers from a grotesque lack of proportion. By concentrating

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on the storekeeper's right to his bubble gum, it totally ignores another highly precious

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property right, every man's, including the urchin's, right of self-ownership. On what

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basis must we hold that a miniscule invasion of another's property lays one forfeit to

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The Total Loss of One's Own

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I propose another fundamental rule regarding crime.

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The criminal or invader loses his own right to the extent that he has deprived another

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man of his.

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If a man deprives another man of some of his self-ownership or its extension in physical

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property, to that extent does he lose his own rights.

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And this principle immediately derives the proportionality theory of punishment, best

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summed up in the old adage, let the punishment fit the crime.

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We conclude that the shopkeeper's shooting of the erring lad went beyond this proportionate

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loss of rights to wounding or killing the criminal.

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This going beyond is in itself an invasion of the property right in his own person of

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the bubblegum thief.

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In fact, the storekeeper has become a far greater criminal than the thief, for he has killed

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or wounded his victim, a far graver invasion of another's rights than the original shoplifting.

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Should it be illegal, we may next inquire, to incite to riot.

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Suppose that Green exhorts a crowd, go, burn, loot, kill, and the mob proceeds to do just

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– with Greene having nothing further to do with these criminal activities.

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Since every man is free to adopt or not adopt any course of action he wishes, we cannot

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say that in some way Greene determined the members of the mob to their criminal activities.

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We cannot make him, because of his exhortation, at all responsible for their crimes.

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Insighting to riot, therefore, is a pure exercise of a man's right to speak without being thereby

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implicated in crime.

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On the other hand, it is obvious that if Green happened to be involved in a plan or conspiracy

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with others to commit various crimes, and that then Green told them to proceed, he would

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then be just as implicated in the crimes as are the others, more so if he were the mastermind

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and Who Headed the Criminal Gang.

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This is a seemingly subtle distinction which in practice is clear-cut.

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There is a world of difference between the head of a criminal gang and a soapbox orator

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during a riot.

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The former is not, properly, to be charged simply with incitement.

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It should further be clear from our discussion of defense that every man has the absolute

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Right to Bear Arms, whether for self-defense or any other illicit purpose.

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The crime comes not from bearing arms, but from using them for purposes of threatened

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or actual invasion.

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It is curious, by the way, that the laws have especially banned concealed weapons, when it

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is precisely the open and unconcealed weapons which might be used for intimidation.

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In every crime, in every invasion of rights, from the most negligible breach of contract

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up to murder, there are always two parties, or sets of parties, involved, the victim,

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the plaintiff, and the alleged criminal, the defendant.

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The purpose of every judicial proceeding is to find, as best we can, who the criminal

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is or is not in any given case.

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Generally, these judicial rules make for the most widely acceptable means of finding out

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who the criminals may be.

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But the libertarian has one overriding caveat on these procedures.

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No force may be used against non-criminals.

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For any physical force used against a non-criminal is an invasion of that innocent person's rights,

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and is therefore itself criminal and impermissible.

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Take for example the police practice of beating and torturing suspects, or at least of tapping

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their wires.

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People who object to these practices are invariably accused by conservatives of coddling criminals.

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But the whole point is that we don't know if these are criminals or not, and until convicted

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they must be presumed not to be criminals and to enjoy all the rights of the innocent.

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In the words of the famous phrase, they are innocent until proven guilty.

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The only exception would be a victim exerting self-defense on the spot against an aggressor,

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for he knows that the criminal is invading his home.

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Coddling criminals then becomes, in actuality, making sure that police do not criminally

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invade the rights of self-ownership of presumptive innocents whom they suspect of crime.

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In that case, the coddler and the restrainer of the police proves to be far more of a genuine

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defender of property rights than is the conservative.

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We may qualify this discussion in one important sense.

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Police may use such coercive methods provided that the suspect turns out to be guilty, and

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provided that the police are treated as themselves criminal if the suspect is not proven guilty.

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For in that case, the rule of no force against non-criminals would still apply.

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Suppose for example that police beat and torture a suspected murderer to find information,

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not to ring a confession, since obviously a coerced confession could never be considered

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valid.

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If the suspect turns out to be guilty, then the police should be exonerated, for then

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And they have only ladled out to the murderer a parcel of what he deserves in return.

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His rights had already been forfeited by more than that extent.

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But if the suspect is not convicted, then that means that the police have beaten and

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tortured an innocent man, and that they in turn must be put into the dock for criminal

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assault.

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In short, in all cases, police must be treated in precisely the same way as anyone else.

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In a libertarian world, every man has equal liberty, equal rights under the libertarian

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law.

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There can be no special immunities, special licenses to commit crime.

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That means that police in a libertarian society must take their chances like anyone else.

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If they commit an act of invasion against someone, that someone had better turn out

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to deserve it, otherwise they are the criminals.

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As a corollary, police can never be allowed to commit an invasion that is worse than,

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or that is more than proportionate to, the crime under investigation.

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Thus, the police can never be allowed to beat and torture someone charged with petty theft,

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Since the beating is far more proportionate a violation of a man's rights than the theft,

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even if the man is indeed the thief, it should be clear that no man, in an attempt to exercise

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his right of self-defense, may coerce anyone else into defending him, for that would mean

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that the defender himself would be a criminal invader of the rights of others.

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Thus if A is aggressing against B, B may not use force to compel C to join in defending

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him, for then B would be just as much a criminal aggressor against C.

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This immediately rules out conscription for defense, for conscription enslaves a man and

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forces him to fight on someone else's behalf.

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also rules out such a deeply embedded part of our legal system as compulsory witnesses.

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No man should have the right to force anyone else to speak on any subject.

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The familiar prohibition against coerced self-incrimination is all very well, but it should be extended

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to preserving the right not to incriminate anyone else, or indeed to say nothing at all.

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The freedom to speak is meaningless without the corollary freedom to keep silent.

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If no force may be used against a non-criminal, then the current system of compulsory jury

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duty must also be abolished.

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Just as conscription is a form of slavery, so too is compulsory jury duty.

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Precisely because being a juror is so important a service, the service must not be filled

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by resentful serfs.

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And how can any society call itself libertarian that rests on a foundation of jury slavery?

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In the current system, the courts enslave jurors because they pay a daily wage so far

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below the market price that the inevitable shortage of jury labor has to be supplied

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by coercion.

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The problem is very much the same as the military draft, where the army pays far below the market

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Market Wage for Privates cannot obtain the number of men they want at that wage and then

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turns to conscription to supply the gap. Let the courts pay the market wage for jurors

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and sufficient supply will be forthcoming. If there can be no compulsion against jurors

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or witnesses, then a libertarian legal order will have to eliminate the entire concept

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of the subpoena power.

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Witnesses of course may be requested to appear, but this volunteerism must also apply to the

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defendants, since they have not yet been convicted of crime.

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In a libertarian society, the plaintiff would notify the defendant that the latter is being

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charged with a crime, and that a trial of the defendant will be under way.

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The defendant would be simply invited to appear.

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There would be no compulsion on him to appear.

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If he chose not to defend himself, then the trial would proceed in absentia, which of

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course would mean that the defendant's chances would be by that much diminished.

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Compulsion could only be used against the defendant after his final conviction.

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In the same way, a defendant could not be kept in jail before his conviction, unless,

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As in the case of police coercion, the jailer is prepared to face a kidnapping conviction

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if the defendant turns out to be innocent.

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This prohibition against coercing an unconvicted person would eliminate the blatant evils of

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the bail system, where the judge arbitrarily sets the amount of bail and where, regardless

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of the amount, poorer defendants are clearly discriminated against.