Rothbard and the Problem of Rules



In The Ethics of Liberty, his main book on ethics and political philosophy, Murray Rothbard says that he supports natural law ethics, based on Aristotle and St. Thomas Aquinas. But he finds a crucial weakness in the Scholastic tradition that had developed that sort of ethical theory:

As we have indicated, the great failing of natural-law theory—from Plato and Aristotle to the Thomists and down to Leo Strauss and his followers in the present day—is to have been profoundly statist rather than individualist. This “classical” natural-law theory placed the locus of the good and of virtuous action in the State, with individuals strictly subordinated to State action. Thus, from Aristotle’s correct dictum that man is a “social animal,” that his nature is best fitted for social cooperation, the classicists leaped illegitimately to a virtual identification of “society” and “the State,” and thence to the State as the major locus of virtuous action.

As most of my readers will know, Rothbard goes on to argue that we don’t need a state at all. Individuals must follow the nonaggression principle (NAP), and if they don’t, it’s permissible to use force to stop them. But otherwise, they are free to live their lives as they wish. In Rothbard’s ethics, then, there are two levels. According to Aristotelian ethics, which he accepts, individuals try to live virtuous lives, guided by their practical judgment rather than strict rules. At the other level, the political, matters are different. Here, there are fixed rules: you don’t get to decide for yourself whether to follow the NAP.

Is it a problem for Rothbard that his individual ethics isn’t based on fixed rules, but his political ethics is based on them? There is no contradiction in a two-level ethics, but wouldn’t it be theoretically more satisfying if all the ethical and political principles were of the same type?  Doug Rasmussen and Doug DenUyl have written over many years a number of books that defend a view of ethics similar to Rothbard’s, and in their new book The Realist Turn (Palgrave Macmillan, 2020), they not only show why a two-tier Aristotelian ethics and politics isn’t a problem, but why it has to take that form.

People don’t live isolated lives. What happens when they get together and form a society? Rasmussen and DenUyl say that they need a fixed set of rules to provide a framework in which each person can pursue a life of virtue. They draw a useful analogy with a baseball game:

it is true that those who play baseball well make following the rules part of their excellent play; but the rules for playing baseball are not designed to provide guidance for such excellent play. Rather, they are there to establish the conditions for making the pursuit of such play possible. The same is true mutatis mutandis for natural rights of individuals to life, liberty, and property….They are norms to be followed rather than be employed. They are designed to set the conditions or framework for making the employment of moral concepts possible when seeking to play the moral game of life among others. These natural rights are the basis for the ethical evaluation of political/legal orders. Particularly, they provide the justification for a political/legal order that protects people from having their lives and possessions, as well as conduct, used or directed by others for purposes to which they have not consented. This protection is provided, as said, by legally prohibiting the initiatory use (or threat) of physical force in all its various forms. People are not just morally expected, but legally required to not violate these rights: one must follow the laws that protect these rights.

To put it more simply, if you are playing baseball and you strike out, you can’t ignore the call and go to first base: you must follow the rules, rather than decide whether it is in your self-interest to do so. You aren’t playing baseball unless you follow the rules. You don’t have to play baseball if you don’t want to do so, but the rules of the political game aren’t like that. You must follow the NAP, and you can’t opt out. It’s in your interest to remain in society, because otherwise you won’t be able to lead a flourishing life (possibly with the exception of a few hermits).

Rasmussen and DenUyl call these political rules “metanorms” in order to bring out their difference from the norms that govern individual conduct. We need to recognize that

what we term “equinormativity” is false. That is to say, it is necessary to reject the assumption that ethical norms must be of the same type or have the same function. For instance, not all ethical norms need to be employed by an agent in determining what is inherently good or what ought to be done; rather, some of them can be merely followed. Put a little differently, it is possible for there to be ethical norms that do not direct conduct but only regulate conditions under which conduct that employs moral concepts take places. These are what we have labeled “metanorms.” What one is concerned with in these cases is simply the conformity of conduct to a rule, because that rule reflects a context.

The two Dougs have made a strong case for their way of looking at ethical and political philosophy. I don’t claim it’s the only possible Rothbardian approach. An alternative would be to argue that natural law ethics does impose directly, at least in certain cases, strict rules on individuals, and that these rules are not just part of a framework that people in society need in order to lead flourishing lives. But their approach is well worth thinking about, and I’m sure Murray Rothbard would have liked it.



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