Action-Based Jurisprudence II: Down under (and back again)

I gave a presentation at the wonderfully principle-centered 2nd annual Mises Seminar Australia in Sydney's central business district (CBD) on 2 December 2012. Here is a document version of my presentation, a close transcript arranged with selected content from the slides and rounded out with a list of readings.

Key themes included clarifying the difference between the ethical and the legal and differentiating "law" into five sub-disciplines, each with its own distinct domains and methods, conflating which (as is usually done) leads to serious problems (which we see all around us). It discusses who wins and who loses from contemporary complexity in legal definitions, and argues that the emerging action-based jurisprudence approach offers a better way of addressing the many contingent complexities of real life and culture without undermining fundamental principles of civilization in the process.

With Mises Seminar co-organizer and Liberty Australia co-founder and director Michael ConaghanDeveloping this for me started out as an attempt at a simpler restatement of the arguments in my August 2011 paper, Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice," one that would be more accessible to people less versed in the background literature. As it developed, new territory and reformulations emerged. This included the three theory modules designed to help people grasp some difficult but crucial concepts without having to delve into stacks of academic books and articles to glimpse a solid initial understanding (after which, those stacks of books and articles can more profitably follow, and a strictly select list of them does, on the last two pages).

A substantially expanded and elaborated academic journal version, with more detailed references and footnotes and some additional new angles, especially on the relationship with action-grounded criminology (our understanding of what crime and criminality actually are), is also in the works.

With Professor Walter Block at 2nd Mises Seminar Australia (visiting Yanks!)There and back again

This was my first trip south of the equator. I had a wonderful time in Sydney and got to meet a number of people I had previously encountered only online, including among many others, organizing team members Michael Conaghan, Benjamin Marks, Washington Sanchez, Samuel Marks, and Anthony Coralluzzo. Before this weekend, I had only briefly met the legendary libertarian teacher/promoter and enthusiastic intellectual trouble-maker Professor Walter Block, but this time had the opportunity to speak with him at greater length. My presentation also came just after one of his (now in his 70s, he did five segments in two days and looked ready to do 12 more). I was stepping up right after someone who has been presenting at conferences since I was learning to walk, and I was touched afterwards that he referred back to content from my talk several times in his later segments.

I also got to talk at length with Michael Conaghan, co-founder and director of Liberty Australia, who is quickly becoming legendary himself in online discussion circles for regularly coming up with spot-on quotations from the relevant literature (even with occasional video clips of old Q&A sessions with Rothbard personally addressing the question at hand) and dropping them out of thin air into active discussion threads.

My last day was a solo trip by city bus to Bondi Beach and MacKenzies Bay. I told the waiter at the amazing Hurricane's Grill Bondi Beach that I didn't feel like leaving Sydney to return to the frozen German winter, but would rather send for my family to come down and join me. He just smiled and said this is the kind of feeling a great many people who visit Sydney seem to report. I could believe it. Maybe Hurricane's delivers to Germany?

Download the free PDF of the document version of the presentation.

The problem with shouting “Tyranny!” in a crowded theater

This is a brief excerpt from my “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice.” Libertarian Papers 3, 19 (2011), pp. 36–37.

It is popularly repeated in “civics” type discussions of fundamental rights and responsibilities that one may not shout “Fire!” in a crowded theater. Merely intoning the name of this famous example is thought to be enough to remind or instruct those present that “rights” are not “absolute” and must be “limited.”

Before delving into the problems with this reasoning, it may be instructive to understand the shady history of the example. The original statement was: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic” (Schenk vs. United States 1919).

Oliver Wendell Holmes, Jr. was penning an opinion of the Supreme Court of the United States. Even though specific speech acts were under discussion, the (constitutional) “right” of free speech was considered. However, what is less widely known is that the actual speech in the case involved neither fires nor theaters. At issue were statements opposing involuntary military servitude (the “draft”) in World War I. Among the examples were leaflets that included such statements as, “Do not submit to intimidation” and “Assert your rights.”

It turns out, then, that a supreme agent of the state introduced this example to rationalize an opinion that obfuscated an otherwise clear issue in favor of that same state. The court, in effect, upheld the punishment of legitimate acts of opposition to an exercise of tyranny that was both unjust on general principles and explicitly illegal under the constitution that established the court’s own existence (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” US Const, Amend XIII, § 1). It is no wonder that confused thinking might follow from such an example.

The rights/actions distinction shows how some of the general notions usually assumed to derive from the theater example are confused (see Murray Rothbard, The Ethics of Liberty, 113–18). First, a person has a right to be the one—as opposed to someone else—who controls his own voice. Yet shouting “Fire!” in the theater is an action. What is the means/ends structure? The means is to shout the word. It may be fair to assume, prima facie, that the end is to needlessly panic the crowd and disrupt the theater experience. This vocal act endangers and inconveniences other patrons and violates the explicit or implied rules set by the theater owner.

However, this need imply no “limitation” on the right of the shouter to be the one in charge of his voice. All that is needed is to say that he, as the absolute and undisputed user of that voice, is responsible for the actions that he takes with it, just as an “absolute and undisputed” motorcycle owner is responsible for the results that follow from how he rides his—or any other—motorcycle.

A simpler example more directly linked to the ownership model of rights further illustrates the importance and usefulness of the rights/actions distinction. The reason attacking another with a baseball bat is a non-aggression principle infringement has nothing to do with who owns the bat (maybe the attacker stole it) or whether ownership of bats can be “absolute” or not, or whether rights to own bats are “limited” by coming up against the rights of others not to be hit by them. Nor would it clarify matters if an archivist were to present a tattered parchment bearing a long lost, secretly ratified amendment establishing a “Constitutional Right to Own a Baseball Bat” (…which, especially for Americans, must not be denied or disparaged!).

What is relevant to praxeological legal analysis is the action of using a baseball bat to hit someone, regardless of who owns it or to which degree of alleged “absoluteness” it is owned. The bat is the means. The end is the result sought from the action of attacking—hurting the person and perhaps also stealing their property. The question of who owns the means—the bat—is not directly relevant to the injustice of the action—the hitting. It does not matter, unless there is some specific reason to argue otherwise (for example, ownership might function as one line of evidence showing what was done and by whom), whose bat is used.