Property, Freedom & Society by Hans-Hermann Hoppe

Author:Hans-Hermann Hoppe [Hans-Hermann Hoppe]
Language: eng
Format: epub, mobi
ISBN: 978-1-93355-052-7
Publisher: Ludwig von Mises Institute
Published: 2009-11-06T16:00:00+00:00

21

Classical Natural Law and Libertarian Theory

Carlo Lottieri

NATURAL RIGHTS AND LIVING LAW:

TOWARD AN INTEGRATION OF ROTHBARD AND LEONI

If libertarianism wishes to give up modern political categories, it has to think about law in a different way.

Murray N. Rothbard, the most important exponent of the radical libertarian school, is right when he rejects the historicism and relativism of legal realism and when—for the same reasons—he criticizes Hayek and Leoni. But unfortunately, he does not really grasp the function of the evolution into classic natural law. Furthermore, his idea of building a libertarian code is completely inconsistent with his frequent references to the Greek and Christian legal heritage.1

In For a New Liberty, Rothbard points out that the history of a changing and evolving law can be useful in order to find just rules: “since we have a body of common law principles to draw on, however, the task of reason in correcting and amending the common law would be far easier than trying to construct a body of systematic legal principles de novo out of the thin air.”2 But the relationship between common law and natural law must be seen differently. Common law is not only an interesting tool for discovering natural law: it has its specific role. Positive law needs to interact with natural law principles, but even the latter cannot be considered as self-sufficient.

Moreover, in his defense of rationality, Rothbard does not realize that law cannot be entirely read into the praxeological framework, which is axiomatic and deductive. The division of theory and history puts some disciplines into opposition with others, but above all it makes a distinction within any single field of study. Economics, for instance, is a theoretical science if considered as political economics, but a historical and empiric activity if it analyzes what happened in the past.3 This is also true for legal studies, because they have a theoretical part but, at the same time, include many other aspects which are, on the contrary, historical and cannot be examined using logical and a priori methods.

In his methodological writings, Rothbard distinguishes between empiricism and experience, and remarks that the refusal of the first does not imply a devaluation of the second. When he criticizes Mises for his Kantian approach, he finds in human experience exactly the main source of the axioms, the fundamental truths that are the starting point of a theory based on deductive logic.4 But before the law, Rothbard seems to minimize the contextual and non-theoretical dimension of a large part of legal controversies and especially of positive law.

Using the Thomist framework, in this essay I will emphasize the importance of the lex naturalis, at the same time highlighting a lex humana deeply rooted in the complexity of different ages and societies, related to the subjectivity and specificity of opinions which cannot be fruitfully examined by a praxeological approach. Many problems, and even some inconsistencies of Rothbardian theory are a consequence of it.

Moreover, the way Rothbard deals with the arguments of causality and liability shows an inadequate

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