Smacking Down Statism

This keynote address was delivered at the 2016 meeting of the Property and Freedom Society.

I

At repeated requests from many sides – and given my already advanced stage in life – I have deemed it appropriate to take this opportunity to speak a bit about myself. Not about my private life, of course, but about my work. And not about all subjects – and there are several to which I have made some, however, little contribution in the course of the years – but one subject only. The one subject, where I consider my contribution the most important: the apriori of argumentation as the ultimate foundation of law.

I developed the central argument during the mid-1980s, in my own mid-thirties. Not from scratch, of course.  I took up ideas and arguments previously developed by others, in particular, my first principal philosophy teacher and Doktorvater, Jürgen Habermas, and even more importantly Habermas’ long-time friend and colleague, Karl-Otto Apel, as well as by the philosopher-economists Ludwig von Mises and Murray Rothbard. In any case, however, the argument I ultimately developed appeared to me essentially new and original. (Around the same time, Frank van Dun, living in Flanders and writing in Dutch, and having been brought up in very different philosophical circumstances and traditions, had come up with a very similar argument and conclusion. Yet at the time, we both did not know of each other’s work and would only find out years later.)

In a nutshell – I shall come to more detailed explanations and clarifications shortly – the argument runs like this:

That: All truth-claims – all claims that a given proposition is true, false, indeterminate or undecidable or that an argument is valid and complete or not – are raised, justified and decided upon in the course of an argumentation.

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That: The truth of this proposition cannot be disputed without falling into contradiction, as any attempt to do so would itself have to come in the form of an argument. Hence, the “Apriori” of argumentation.

That: Argumentation is not free-floating sounds but a human action, i.e., a purposeful human activity employing physical means – a person’s body and various external things – in order to reach a specific end or goal: the attainment of agreement concerning the truth-value of a given proposition or argument.

That: While motivated by some initial disagreement, dispute or conflict concerning the validity of some truth-claim, every argumentation between a proponent and an opponent is itself a conflict-free – mutually agreed on, peaceful – form of interaction aimed at resolving the initial disagreement and reaching some mutually agreed-on answer as to the truth-value of a given proposition or argument.

That: The truth or validity of the norms or rules of action that make argumentation between a proponent and an opponent at all possible – the praxeological presuppositions of argumentation – cannot be argumentatively disputed without falling into a pragmatic or performative contradiction.

For while it is a contingent empirical question which external good is or is not rightfully owned by whom, and while in principle it is possible to place any current possession of any and all external goods by any one person into doubt as regards its lawfulness, this is not the case and it is not possible to do so with respect to any one person’s physical body as his primary means of action. No one can consistently argue that he is the rightful owner of another person’s body. He can say so, of course. But in doing so and seeking the other person’s assent to this claim he becomes involved in a performative or dialectic contradiction. Hence, it is and can be recognized as an apriori truth that each person is the rightful owner of the physical body that he naturally comes with and has been born with, and that he has directly appropriated prior and before any other person could possibly do so indirectly (by means of his own body). No argumentation between a proponent and an opponent is possible without recognizing and respecting each other as independent and separate persons with their own independent and separate bodies. Their bodies do not physically clash or collide, but they argue with one another and hence, they must recognize and respect the borders and boundaries of their separate and independent bodies.

Some critics have argued that this does not demonstrate a person’s ownership of his entire body, but at best only of parts of it. Why? Because to argue it is not necessary to use all body parts. And true enough, you do not need two kidneys, two eyes or an appendix to argue. Indeed, you also do not need your body hair or even arms and legs to argue. And hence, according to such critics, you cannot claim to be the lawful owner of your two kidneys or eyes, your legs and arms. Yet this objection does not only appear silly on its face – after all, it implies the recognition of these ‘un-necessary’ parts as natural parts of one unitary body rather than as separate, stand-alone entities. More importantly, it involves, philosophically speaking, a category mistake. The critics simply confuse the physiology of argumentation and action with the logic of argumentation and action. And this confusion is particularly surprising coming from economists, and even more so from economists familiar also with praxeology. For the fundamental distinction made in economics between ‘labor’ and ‘land’ as the two original means of production, which corresponds exactly to the distinction made here between ‘body’ and ‘external world,’ is also not a physiological or physicalistic distinction, but a praxeological one.

The question to be answered is not: which body parts are physiologically necessary requirements for one person arguing with another person. Rather, the question is: which parts of my body and which parts of your body can I or you argumentatively justify as my or your lawful possessions. And to this, a clear and unambiguous answer exists. I am the lawful owner of my nature-given body with everything naturally in it and attached to it, and you are the lawful owner of your entire nature-given body. Any argument to the contrary would land its proponent in a performative or dialectic contradiction. For me to say, for instance, in an argumentation with you, that you do not rightfully own all of your nature-given body is contradicted by the fact that in so arguing, not fighting, with you, I must recognize and treat you as another person with a separate body and recognizably separate physical boundaries and borders from me and my body. To argue that you do not lawfully own your entire natural body, which you actually possess and have peacefully taken into possession before I could have possibly done so indirectly by means of my natural body, is to advocate conflict and bodily clash and hence contrary to the purpose of argumentation: of peacefully resolving a present conflict and avoiding future conflict.

All I could possibly claim without immediate contradiction is that you do not own all of your current body because not all of its current parts are its natural parts. That some current body parts are artificial parts, i.e., parts that you had acquired and attached to your nature-given body only later and indirectly. I could claim, for instance, that your kidney is not lawfully yours because you were not born with it but had taken it against my will from my body and implanted it in yours. Yet in all cases such as this, then, in accordance with the principle of prior possessions, the burden of proof is on me, i.e., the opponent of the status quo of body parts.

A similar category mistake, i.e., a fundamental confusion of the empirics of argumentation on the one hand and the logic of argumentation and argumentative justification on the other, is the source also of another repeatedly, and from several sides presented ‘refutation’ of the argument from argumentation. This ‘refutation’ consists of a simple observation: the fact that slaves can argue with their slave masters. Therefore, with slaves being able to argue, so the conclusion, my claim that argumentation presupposes self-ownership and libertarian property rights is ‘empirically falsified.’ Astonishingly, then, I should have never heard of arguing slaves.

But I did not claim that in order for one person to argue with another full libertarian property rights must be recognized and in place (which would imply, at least under present circumstances, that no one could ever engage in argumentation with anyone else) and that argumentation under any other, less than libertarian conditions is impossible. Of course, a slave and its master can engage in argumentation. Indeed, argumentation is possible under practically all empirical circumstances, as long as every participant can only say and do what he says and does on his own and no one is threatened or made to say or do so. Hence, the criticism leveled against the argument from argumentation is completely irrelevant and beside the point. The argument is not an empirical proposition about whether or not argumentation between one person and another and non-libertarian conditions can co-exist; and accordingly, it also cannot be countered and refuted by any empirical evidence. Rather, the argument concerns the categorically different question whether the existence of non-libertarian conditions can or cannot be argumentatively justifıed without running into a performative or dialectic contradiction. And with regard to this question, the answer is straightforward.

A slave master can argue with his slave concerning the truth value, for instance, of the law of gravitation or the existence of invisible germs, and if he were to permit the slave access to all means and data necessary to bring the contentious matter to a conclusion, his arguing with the slave would not involve any contradiction but constitute indeed genuine argumentation. But matters are quite different when it comes to an argumentation between a slave master and slave about the subject of slavery, i.e., the conditions under which their argumentation takes place. In this case, if the slave master would say to the slave ‘let’s not fight but argue about the justification of slavery,’ and he would thereby recognize the slave as another, a separate and independent person with his own mind and body, he would have to let the slave go free and leave. And if he would say instead ‘so what, I have recognized you momentarily as another independent person with your own mind and body, but now, at the end of our dispute, I deny you ownership of the means necessary to argue with me and prevent you from leaving anyway,’ then he would be involved in a performative or dialectic contradiction. To do so would be contrary to the very purpose of taking argumentation seriously and of accepting the consequences of argumentation. This ‘conversation’ between a slave master and slave would not constitute genuine argumentation, but be at best an idle or even cruel parlor game.

And the same response of ‘you are simply confused,’ then, also applies to those critics who tried to double down on the ‘but slaves can argue, too,’ criticism by dragging up additional ‘counterexamples.’ Yes, true enough, a person in jail can also engage in argumentation with his jailer, and a person subjected to taxation can also argue with the taxman. Indeed, who has ever doubted that? However, the question to be answered, and the one addressed by the ethics of argumentation, is if the current status of the person in jail or subject to taxation can be argumentatively justified or not. The jailer would have to demonstrate that the jailed had previously violated the argumentatively indisputable principle of prior possessions and thus committed an unlawful action or ‘crime,’ and that the current restrictions imposed on the movements and prior possessions of the jailed were justified in light of this earlier crime. And if the jailer would not or could not provide such empirical proof of a prior crime of the jailed, and if he then still did not let the jailed go free and restored him to his prior possessions, the jailer would not be engaged in argumentation but in a mock debate, and it would be he, who was guilty of a crime.

And likewise for any verbal dispute between the taxman and the taxed. The taxman, in order to argumentatively justify his claim to any of the tax subjects current possessions, would have to demonstrate that he is in possession of a prior debt contract or some sort of rental contract that would justify his present claim to any of his opponent’s current possessions. And if he would not or could not provide any such evidence – and of course no taxman ever could –, then he would have to give up on his demand; and if he would not do so but insisted on payment, his verbal exchanges with the tax subject, too, would not qualify as genuine argumentation but as only a mock trial, and it would be the taxman, who was an outlaw.

And that is that. The ethics of argumentation stands unimpaired.

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