Zwolinski Tries to Take Rothbard to the Mat

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David Gordon
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The Spring 2024 issue of the Independent Reviewfeatures a symposium on Murray Rothbard’s For a New Liberty, which was published some fifty years ago. One of the contributions, by the philosopher Matt Zwolinski, stands out from the others in that it is not favorable to Rothbard. To the contrary, Zwolinski argues that Rothbard’s case for liberty is unsound. In my view, he has failed to show this, but a number of his arguments are interesting, and in what follows, I’ll have a look at two of them. I met Matt Zwolinski many years ago when he attended some of my lectures at the Mises University. He has gone on to become a very able philosopher, but he ought to be a Rothbardian!

Philosophical arguments often turn on competing judgments about the weight to be accorded various considerations. Suppose, to take a famous example, that you think it is wrong to lie but that you also think it is wrong to provide a murderer with information that will enable him to carry out his crime. What should you do if a murderer asks you whether the person he intends to kill is hiding in your house, as in fact he is? Should you tell this murderer, enabling him to find his victim, or should you lie? Most people would say you should lie, but Immanuel Kant thought otherwise. Some of the arguments in Zwolinski’s essay are like this—how important, for example, is it to respect someone’s property rights when doing so has bad consequences? In arguments of this sort, it’s difficult to show conclusively that one answer is correct.

Sometimes, though, an argument depends on an absurd supposition, and I’d like to begin with an example of this. Zwolinski rightly notes that Rothbard defines freedom in terms of property rights: unless your property rights have been infringed, your freedom hasn’t been restricted. He goes on to say that according to Rothbard’s account of punishment, there are instances in which an observer of a situation could not tell whether someone had been wrongly deprived of his freedom unless the observer knew how the situation had been reached:

In Rothbard’s understanding of freedom, whether an individual or society is free depends entirely on whether the property rights of that individual or society have been respected. This, to borrow a distinction from Robert Nozick . . . makes freedom a “historical” rather than an “end state” principle. In other words, whether an individual or a society is free depends not on what that actual condition is at any given moment, but solely on how that condition came about. To return to our earlier example, an individual who is in prison because they are being justly punished for a crime they have committed is, on Rothbard’s view, free, while an individual in precisely the same physical situation who is there because they have been kidnapped is not. (emphasis in original)

Zwolinski is trying to say that his example shows that Rothbard’s account of freedom leads to an absurd consequence, but the actual absurdity lies in how Zwolinski understands Rothbard’s account. Zwolinski thinks that Rothbard is committed not to “someone who is being justly imprisoned is being justly deprived of his freedom” but instead to “someone who is being justly imprisoned is still free, since his property rights haven’t been violated.” Zwolinski objects, “Isn’t it absurd to say that a prisoner in jail remains free? Rothbard’s account of freedom entails just this absurdity.” This is a misreading of Rothbard’s account of freedom, which is intended to apply to a situation in which people respect each other’s rights. I don’t have the right to enter your house without your permission and take your coin collection because I want it. Rothbard would not say that my freedom to do this is restricted by your rights, but that I have no such freedom at all. Agree with Rothbard or not, this isn’t an absurd way to look at freedom. The theory of punishment, though, is a separate matter. It can’t be taken for granted, as Zwolinski does, that Rothbard’s account of freedom applies to it in the same way that it does to the situation in which rights are respected.

If I’m correct, Zwolinski has misread Rothbard’s account of freedom, but why is his misreading absurd? The answer to this is that cases of the sort Zwolinski discusses are not that hard to produce. Suppose, for example, that someone shoots and kills a prowler in self-defense. It would be strange to say that the prowler remains free even though he has been killed, yet on Zwolinski’s understanding of Rothbard, he would have to say exactly that. Why, though, is this Zwolinski’s problem rather than Rothbard’s? The answer lies in the previous comments that cases of this kind aren’t hard to produce. If Zwolinski’s interpretation of Rothbard were correct, wouldn’t it have occurred to Rothbard himself that his account of freedom has these counterintuitive consequences, and if it does, wouldn’t he then have explained his view of them? After all, Rothbard was hardly stupid, and it is thus very likely that if he did want his theory to apply in the way Zwolinski suggests, he would have said something about it.

Note that I am not suggesting this response to Zwolinski’s objection: “Rothbard’s theory leads to counterexamples. Since, though, Rothbard’s theory is true, it doesn’t have counterexamples. Therefore, the interpretation of Rothbard’s theory that leads to these counterexamples is wrong.” (I have seen parodies of the philosophers Donald Davidson and Nelson Goodman that suggest they adopted this argumentative strategy.) My point here is that the particular counterexamples Zwolinski suggests are ones Rothbard was unlikely to have missed.

Zwolinski compounds the fallacy that my example illustrates. He says, following my earlier quotation:

But what this entails is that we cannot determine whether society is free simply by looking at the condition of its people at any point in time. And this, in turn, means that the Rothbardian conception of freedom is in principle compatible with almost any objective state of affairs, no matter how unfree it may appear.

Imagine, for instance, a society in which the vast majority of citizens have virtually no choice in where they live, where they work, how they dress, or what they can read or say. Are they unfree? The Rothbardian answer can only be: not unless their property rights have been violated. (emphasis in original)

Zwolinski wrongly assumes that property rights must be characterized in a way that permits these unpalatable consequences, but what is the basis for this? Suppose, absurdly, that dropping an atomic bomb on a city does not violate the property rights (which include their self-ownership rights) of the inhabitants. It follows that they are free, even though they have been obliterated. Under what conceivable circumstances, though, would it be plausible to hold that dropping an atomic bomb on a city does not violate the property rights of the inhabitants? If my example were used to show that equating freedom with the nonviolation of property rights is absurd, it would fail because the absurdity would depend upon an absurd understanding of what Rothbard meant by property rights. The same holds for the case “in which the vast majority of citizens have virtually no choice in where they live, where they work, how they dress, or what they can read or say.” Why wouldn’t Rothbard include the freedoms to do these things in his account of self-ownership? Again, if he didn’t, wouldn’t he have thought of cases like Zwolinski’s and explained his position on them?

The case is analogous to another situation that Zwolinski discusses. As he points out, there is a controversy among libertarians on whether self-ownership includes the right to sell yourself into slavery. It would be a gross error to argue that someone who equates freedom with respect for property rights would be committed to holding that voluntary slaves are free. The incongruity of this commitment depends on holding that you can sell yourself into slavery, a view a Rothbardian need not hold and in fact Murray Rothbard does not hold.

I’d like to turn to another instance in which Zwolinski misinterprets Rothbard. Rothbard says that there are only two alternatives to self-ownership: slavery, in which some people own others, and a system in which each person owns shares of everyone. Zwolinski objects that these alternatives are not exhaustive; indeed, it is obvious that our own society does not fit Rothbard’s classification:

Rothbard claims that there are three and only three different ways of grappling with the problem of self-ownership. But it is perfectly obvious that there are other, unacknowledged possibilities beyond these three. It is obvious because none of those alternatives describes the world in which we actually live. Ours is not a world of full self-ownership, but nor is it a world in which either one group owns everyone else, or everybody owns a small piece of everyone else. (emphasis in original. The description Zwolinski gives of Rothbard’s third alternative is slightly off. In it, each person owns a piece of himself as well as a piece of everyone else.)

The alternative Zwolinski has in mind is a “bundle of rights” account of ownership, as he discusses elsewhere in his article. People have some components of full Rothbardian self-ownership but not others. For example, you are free to accept an employment offer, but if you accept it, you have to pay part of what you earn to the government. Doesn’t the “bundle of rights” view show that Rothbard was wrong to claim “that there are three and only three different ways of grappling with the problem of self-ownership”?

I do not think so. Rothbard’s argument is that there are only three ways of theorizing ownership. Zwolinski’s alternative is not a theory of ownership but rather a descriptive account of how particular societies allocate bundles of rights. Rothbard could readily admit that there are indefinitely many ways of allocating bundles of property rights, while consistently maintaining his trichotomy. To show that Rothbard’s trichotomy is wrong, Zwolinski would have to come up with a theoretical basis for allocating the bundle, and he hasn’t done so.

An analogy may clarify my response to Zwolinski. Rothbard says that the first person to “mix his labor” with unowned land acquires it and that the alternatives to this are either a rule that specifies that some people can acquire unowned property but others cannot or a system in which all property in a society is collectively owned. It would not be a good response to Rothbard to say, “Rothbard has left out indefinitely many alternatives! We could have systems in which the second, third, etc. person to mix his labor with unowned land acquires it. Rothbard ignores all of these!” Such “theories” would be arbitrary, absent a coherent basis for them. It is highly unlikely that Rothbard was unaware of this sort of possibility; it is much more likely that he rejected it as not worth discussing.

Readers must judge for themselves, but in my opinion, Matt hasn’t taken Rothbard to the mat.