Theory of Consent

The here presented Theory of Consent* is a theory following Hans-Hermann Hoppe's argumentation ethic,** which explains a priori norms based purely on the concept of consent and its necessarry premises. It is therefore a normative theory of rights.

The difference to Hoppe merely consists in my application of the argumentation ethic on the concept of consent instead of property. The reason is simply that property is already an abstraction of consensual norms.

The libertarain tradition of thinking is very following the historical imprint of that concept. But the concept makes it hard to differ between moral and logic norms of law. The liberal traditionalist, who is arging for the sake of property, isn't able to bring particular questions into a coherent form (homesteading, original appropriation of land, abortion, lifeboot situations). The more he thinks about it, the more he finds difficulties in it. This article stresses that these unnecessary problems completely clear away when one abstains from the concept of 'property' and replaces it by the concept of 'consent'.

The Importance of the Theory of Consent

It is clear to everyone that a consent is not attainable on every issue amongst all people. A consent is also often not necessary or is not seldom even obstructive1, however, in every enforced 'community' it is happily presumed as a 'social contract'. We know this is political nonsense.2 For example, it is political nonsense to speak of a consensus in climatology. There may be a consent in climate policies, but there is no consent in the climate science. The use of the term consent in connexion projected onto prevailing opinion is only an appliance for mystification and wishful thinking in favor of the public spiral of silence. We are interested in the unadulterated connotation of the term.

A popular 'argument' is to speak in terms of inefficiency of individuals outside a group.3 Of course, group membership offers advantages. This leads to the assumption that there must be valid reasons for being a member of an enforced group like a nation or a clan. But this doesn't mean that the nation or clan is necessarily efficient. So if individuals are to strive for efficiency, they must be able to form their own community, otherwise they will be bound into the inefficient affairs of 'their' political group. In particular, with regard to consent, every membership in a group must be free and terminable. Therefore, such terms of 'tacit consent' are useless by definition.

Even so most people 'accept' such a 'social contract' because of their 'certainty' that it would be necessary to set up something against the 'inadequate' ability of people to strive for consent. The question is only: what can be set up against that? The social contract may resolve existing problems insofar as it can forestall the outbreak of open force and may provide constitutional 'security' but it doesn't always or rarely solve the problems' causes. On the contrary — a social contract may even cement conflicts, — may evoke new conflicts when a government feels committed to national unanimity. — And governments like that. Increasing national debt is only one of such artifical conflicts, which will show their full mass not till then by collaps which today simply no officer want to assume.

But we don't want to concern ourselves here with this controversy of 'methods', because it would be absolutely pointless to persuade the supporters of the political side who, out of self-interest, are dependent on their own assumptions. Nevertheless, whoever wants to know more may read Randy E. Barnett's essay. He provides some insights into the position of consent theory within Common Law. The historical perspective is described by Carl Watner (Consent) 4

"The anarchistic implications of all this should be quite clear. The state has no right to raise any taxes except as they are 'voluntary' contributions or 'contractual' obligations for services rendererd. In fact the historical origin of taxation demonstrates its relationship to the idea of consent. At least some forms of taxations were matters of voluntary grant but their history is bound up with gradual growth of the right of the majority to bind the individual."

".. So for nearly three centuries now, the most perceptive political theorists have perceived that there is a large, unbrigdeable chasm between the idea of consent and government. There is simply no way to cross that bridge, for inevitably to contend that government rests on consent is to begin the descent on the slippery slope to anarchism."

It is also not intended to justify the libertarian philosophy. My assumption is merely that a free and natural order is desirable. A natural order is the free play of market forces. However, the market is anything but libertarian in principle, instead it is purely evolutionary. So whoever wants the free market can neither advocate interventionism nor pure libertarianism as the primary principle of society. The magic word can only be consent. And the goal of this article is merely to show what one can derive from the context of consent, therefore what the 'Law of Consent' must be.

The importance of consent is often ignored. Let's look to Kant's Categorical Imperative. It is best known in its formulation: "Act only according to that maxim whereby you can at the same time will that it should become a universal law." What is the best method to proof that it should become an universal law? If you want to smoke, and you are civilized, then you ask if you may smoke. When you know that everybody is agreed to that then you can really be sure that you are morally right. The interesting issue is that the consensus method seems to be a taboo in the context of Kant's moral philosophy and its complete secondary literature. In his subconsciousness, the moral seeker after truth is not really searching a suitable method to proof the morality of his will. In his intuitive way, he is asking for a discernment but not for agreement. He is searching a 'clever' workaround to justify his want in an enviroment which doesn't call for a 'cumbersome' consent. This is indeed the standard in a society with the rule of law. Because it is naturally impossible to ask everybody in a whole society (if you want to smoke or if you want to do anything else) when there is a demand for equality - it is so easy to repress the possibility of the method. This is the reason for the common misuse of Kant's Categorical Imperative.

The Content of the Concept of Consent

Consent means the communicative endeavor of acting humans in mutual agreement.5

The argumentative power of consent grows out of voluntary agreement. (See therefore Hoppes explainations about argumentation ethics.) Therefore it is possible that a norm can arise from consent and that this norm defines a (private) claim to rights. Applying the concept of consent to legal titles means therefore a priori the application of the concept of (private) rights, too. And this means that all indispensable principles of rights (not to be confused with legislation) must apply to consent, too.

The Content of the Concept of Rights

But what are rights, and how do they come into existence?

We start with the assertion that X has the right to initiate violence against Y. Is the existence of such a 'right' possible at all? The answer results from the question: where should such a right arise from anyway? Either X gives himself that norm – then no point is affected at which one could speak of a right – only of an arbitrary decision; or Y endows X with that norm – but then that is no aggression6 as Y is agreeing to this. (Otherwise a dentist would be a felon.)

Rationally no person is able to give himself rights. Either the rights don't exist then, since nobody has given them to anyone, or they don't exist since there are no legal entities around anyway, but then there are no ethical obligations towards anyone present. In the case of consent rights always arise from an opposite side.

There are only two ways to define rights — one is socially acceptable and one is anti-social. The essence of the anti-social method means: when somebody initiates force, he then, by his action, performatively defines a norm which says: "To initiate force is ok!". (Positive rights are always of this kind, as the right to work, to health etc. always means being able to take something from other people.) If this is valid for one, then it is also valid for others. Therefore, it is an universal right to retaliate against the initiation of force. The socially acceptable method is simply consent. The same applies with government. Rights can only come from a counterpart. Since that is impossible without consent, this is the evidence that the law of the state can't be a right, certainly not when the alleged consent doesn't in fact exist. Indeed, state citizenship is an enforced relationship, and consent to a state which may impose a tax level of any amount — even a tax level of 100 percent has already occurred — would be, if performed systematically, a death sentence. So nobody could in all seriousness sign up to such a membership. The democratic theory too tries to assume an existence of a consensual partnership by feigning, with the help of citizenship and the right to vote, a form of 'community'. But is the cheating thimblerigger a consensual partner?

The statist position claims in all kinds of versions that rights are not enforceable without statist institutions, and that an establishment of norms based purely on consent wouldn't be feasible, therefore doesn't exist, and hence the state is the presupposition for every enforceable right.

However, it is easy to disprove this assertion. Let us consider what we want to have rights for. Rights are not just there to describe our claims, but also it shall encourage us to adhere to them. But how can the latter be achieved, if the penalty is not settled together with the claim (regardless of who is considered to be responsible for its execution)? With other words: Every effective legal norm already contains an arrangement about what has to happen when the right is violated. And every reasonable legal norm will want to fortify loyal behavior and to weaken the violators of rights. So whoever agrees to a right with the intention to honor it is pronouncing that he is aware of unpleasant consequences in the case of his violating the right.

Whether one supports oneself on a special institution of rights is a itself question for which a consensus would have to be found, but to assume a constitutional state as natural presupposition for rights is wrong in any case. Rather, the advocates of the imperative of a constitutional state merely view a norm as compelling, i.e. out of pure confusion, they cannot or do not want to see this norm as part of a consensus, but consider it as God-given. A symptom of this view is the denigration of private justice as 'self-administered' justice ("taking the law into one's own hands").

But is this significant? Every kind of justice means the use of force. One needs the machine of justice (incl. rights enforcement) only when one's own norms result in different judgments of one's own. It cannot be any other conclusion. Insofar justice is always use of force. It doesn't matter whether justice is 'self-administered' justice or 'heteronomously administered' justice. Justice must find a lawful judgment. If the courts don't do this, then they would be initiating force themselves and have to be called to account. The instrument of justice is ultimately always one of self-defense. The interdiction of self-administered justice could even have evil results. It is possible that when 'heteronomously-administered' justice fails (because of the missing criterions for evaluation) that the legal enforceability of some rights will become impossible.

An other argument often brought forward is the assertion that without constitutional aid in paying the costs of litigation, the poor would have no rights. But this is wrong too, because a law case means that a restitution claim exists, and it is the law breaker who has to pay this claim including all costs.

The most important part of the concept of rights is, as shown above, that there cannot be a right which allows the initiation of force. Therefore the non-aggression principle is an integral part of the 'Law of Consent'. Every norm which is based on consent and is to be a right must therefore (at least) be thus established to forbid the initiation of aggression. At the same time this is also an indication for the enforcement of claims of rights. For if the initiation of force is not permissible, then every legal norm (which is not better defined) has to be understand to that effect that an enforcement is authorized to restitute the state of affairs which would have existed without the initiation of force, or which is to be compensated (the principle of compensation). But if that is not possible or will not happen voluntary, then the victim (or his proxy) is allowed to deal in the same manner because exactly at this point the perpetrator has by his own act disregarded the right (principle of retribution). However there is in practice an important difficulty since a damage is often to assess only by subjective measures. But it doesn't matter hereby how the causer of damage or a third party assesses the damage, as he cannot discern the victim's subjectively suffered damage. Only the victim himself can, as a witness, judge his subjectively felt loss. If one wants a rightful compensation, one has to allow the victim to assess his subjectively suffered damage, in order for a subjective damage to be properly compensated. Theoretically the injured party could cheat in this process and state a higher damage than was actually felt. The victim would thus be obliged to honesty. And the compensating party would have the right to recourse if he discovers that the damaged party has calculated an excessive amount of damages. One can regards this procedure as problematic. An assessment of compensation through a third party without the victim's consent however has to be ruled out as a legitimate procedure.

And another important integral part of rights has to be clarified. Rights are a claim and must be enforceable. For to dispute a legal claim in a lawsuit or to enforce it, we have to be able to demand that the claim is valid or that it can be validly disproved. The question is only for the onus of proof. A plaintiff always meets a defendant here. Since the defendant can justify nothing aside from his claim, thus doesn't know what the plaintiff want to argue for, therefore the defendant can never know all objections of the plaintiff and therefore he can't ever supply a reasoned disproof at the start. Thus it is the absence of the ability to falsify which makes it impossible to justify anything. Consequently the plaintiff has always to bear the burden of proof if rights are to make sense. Therefore this also constitutes an indispensable norm in the 'Law of Consent'.

What Constitutes a Consent?

Searching a consent means a priori the capability to communicate the desirable results of a consent.

For this two minimal presuppositions are at least necessary. Somebody must be able to communicate for what he expects an agreement; So he must indicate some claim. And a second person willing to accept must make the first person aware of this. Should the decision-process make sense at all, then this must mean that the first one must also be able to accept a 'No' from the second one. That is to say, the first person must be prepared that the second one answers his attempt with 'No'. This already implies a minimum ability for argumentation. But it seldom remains at this binomial question. It also comes to the exchange of higher qualified arguments and due to this the demands regarding the quality of consent in terms of verifiability, truthfulness, rightfulness and sincerity are raised.

Or as Hoppe would put it: The search for consent means a priori, that at same time as one is searching for consent, thus with a partner of consent, one is, as long as one argues, accepting the partner as an independent, autonomous being able to accept consent, whom one cannot attack without at the same time leaving the common ground of the ability to find consent.7

Only the principle willingness for consent, meaning the willingness to argue, gives rise to the norm that the partner of consent has autonomy rights of his own. But he who leaves the level of argumentation, and thus doesn't accept the autonomy rights of the partner in consent searching, can not expect on the grounds of his own morality norm that his opposite side will accept his autonomy rights as soon as he is no longer able to find consent. Thus, it is clear who or what must be subjects of rights. Only beings able to find consent can be this.

Conclusions

Applying reason to this, the following principles emerge.

Voluntary action means that there is a priori an incompatibility between consent and coercion, thus with action under which consent would never take place. Nobody can enforce a consent. Consequently all actions of which one knows that no consent would be accomplished with them, lead to nothing which we may call 'consent' in same sense. If one calls such actions 'deprivation', 'murder', 'cheating', 'deception', 'rape', 'extortion', 'force' or whatever is actually secondary. It is a question of principle.

Maybe the principle is hard to handle but it is nevertheless correct. (And with that I want to point out a general misunderstanding.) One normally assumes that among reasonable men one may presuppose that the party to a contract doesn't intentionally draw you into a worse position than one would have been without consent, because then his behavior wouldn't aim for consent, thus the consent would intentionally be only one-sided and not both-sided. Would this 'consent' be invalid in any case? It is not so simple either. But it is possible that the expectations regarding the quality of the valid consent may vary. For example, one doesn't want to have to agree voluntarily with a lie, or one wants a high contentedness to arise. In these cases, these are additional norms, which however must have arisen somehow beforehand through consent. If somebody wants to be 'lied' to — for which reason whatever — maybe it serves well-being — then this is in accordance with the premises of a conception of consent because is founded on trust, but not on words. The wish to standardize consent on an ostensibly agreeable level than the concept really implies, is a clear error. But as one can see now, it must consist a consent itself on the nearer concept of consent. So there is no need for an acrobatic moral discipline because the consent is already the prescription for what a useful consent should be. What us tangle is only that we are not so aware of these consent terms because they are subconsciously part of our customs.

But yet another point becomes manifest. Because if the consent is nothing other than a voluntary standardization-procedure, and if a non-voluntary standardization-procedure could go by the name of 'state' (it doesn't really matter what one calls it – just for simplicity's sake) and when norms in a state are enforced, i.e. norms have to be enforced by coercion in order for them to be valid, then coercion is the only difference that the state has at its disposition as tool of standardization-procedure. It is indeed the characterisation of the state. Every society may give itself every norm which their people theoretically want. The difference between state law and consent law consists in the fact that state law does never need a consent to constitute a law. Otherwise it woundn't be a state law. This is the pure nature of the law of the state. It wins its 'quality' by the method of coercion. One have to ask at this point for a honest justification of state, if coercion may effect something positive to society at all. But the state theorist has never tried to get the bottom of this issue.8 He has presupposed it always to be right, and he has even trifled with that the arbitrariness of the law is first of all suited for subjugation of people, so for its misuse. In historical result the theorists have dodged this proplem with basic rights to qualify it at least in some extend for moral use. However they have further on leaved the question unanswered if coercion may produce by its rules any positive effect in society. One could arg that a society making laws to itself will come much faster to decisions as a society which is calling for agreement. So if coordination between many people would be a problem then one could find in it a natural justification of government. But neither one can clear if this way leads actually to neccesary results nor — and this is important: if this decisions making itself is neccesary. For it is always the market which is searching for solutions, and gives them to people on the reason that they come to fast decisions without high transaction costs. So such issues raise to discussions on market and government failure at which state theorists state the reason just as little about why just they (with due respect to all imperfectness in the markets) want to be able to make the more proper changes. But the point after this discurs is simply to say, that the view about the voluntary consent gains in importance when coercion is not the adequate instrument for norm-ascertaining. If so, then the voluntariness in consent must be obligatory, and all consent norms which we can determine in this anaylsis as presuppositions of voluntary consent — the only correct tool to define rights — must be in every society which aims at consent the only correct norms as well. And even in a state, which is not to be despotic, these are the more suitable ones.

'Natural' Rights

Now, there are a lot of ideas about the theory of rights which are not considered in context with consent. Thus the idea of Human Rights is that such 'rights' go without saying, meaning that their validity would needs no consent. — The same applies to the case of property. Thus it ought as a matter of course that the fruits of one's own work is one's property and consequently there ought exist an exclusive right of disposal. Since Locke many liberal theorists are following the doctrin that property has to be a natural law, and that it would evolve a quasi positiv impact. In that one had mixed his "labor" into a free resource, that would make the "natural" law to say that something would be his "property" and "property" as effective norm disengange the individual from the bondage to have to make his effective claims against third parties. But this conception is inexact because "labor" is a subjektiv value which gain its economic and social meaning as recently as others are doing the same. It is not enough to hit a plug into the ground to "produce" effective "property". 'Property' is a pragmatic norm, which comes from the reason that others want to save the "fruits of their labor" too, and hence acknowledge a right from "labor". But not every "labor" deserves social respect to itself. If somebody takes possession of a scarce resource and he expect that nobody will dispute his possession, then he must something do, in order that others respect that. So he is (with Locke's "labor") actually in a permanent justification constraint to third parties who are waiting (from the social anthropologist view) for a situation to take the opportunity (by shift of power) and to adopt the scarce resource.

Even though or precisely because these views are not completely wrong, they are misleading or result in theories which are not comprehensible for everyone.

For if we have proven that reasonable rights can merely arise from an act of consensus then another correct kind of rights derivation can only result in the same.

Hans-Hermann Hoppe did this in his theory of property by correct usage of the apriori of argumentation and communication and proved for example the thesis that considering the own body as property must be true.9 10

As a matter of fact, it has something to be said for it as it proves the meaning the own body as property, particularly as it is evident that nobody using coercion may 'whittle' the body of another to induce somebody to a consent. But the view is thereby obscured as to how to account for property outside of one's own body. And to explain this is a lot easier with the 'Theory of Consent'.11

It is not really necessary to use the term property. That property norms are always consent norms becomes clear by the fact that 'property' is an abstraction of the 'consent' term. I.e. if we want to explain property, we have to explain it with consent norms. However, if we have already explained consent norms, why do we then need to explain 'property' again? Thus it would not be necessary to speak of 'property'. The term of 'property' merely makes the explanation easier when we have to deal with exclusive rights of disposal over scarce resources, and this is just the second step before the first. The situation is similar with Human Rights, when they are over hastily recognized as 'naturally rights' (or usually also 'Natural Law').

Therefore we can rephrase that matter a much easier way without to deny Hoppe's apriorism or his "natural theory of property", but also without some ballast of universalisation or first-come-first-own ethic and with a general theory of consent instead of a general theory of property.

So what we can say about all conceivable norms is this: they have to be in accordance with the Non-aggression principle. Or reworded in a positive form: All actions are valid as long as they are in accordance with the Non-aggression principle. Since one has to assume a conflict whenever an aggression takes place, and since the agreement of the consent partners cancels the initiation of violence, all the requirements for a meaningful system of rights are thus given. Which requirement is needed other than that nobody initiates violation against an other resp. just dealing in valid terms of agreement of the consent partner in case of conflict (without contradiction to this context at same time of course)?

Whatever, in the case of property it is manner that somebody claims the exclusively rights of need of a scarce good. Is there no conflict then there is nothing against this use anyway. Is there no initiation of violence then there is no conflict by view of consensus. The conflict may consist by an other view but then the opposite claim has to be justifiable by an existing consent because we have already illustrated elsewhere that only a consent may produce rights and just there, where norms consists, it may be possible that there is any tort. And because we know that rights can arise solely by consent, in order that one may reasonably call them 'rights', the inverse term must be correct, too: Everything is admissible that either does not initiate force or that has not been consensually defined as violation in advance. The question is only: what is the initiation of force? We know only that force by legal means of justice must be an objective statement. But in reality one would notice a violation of living conditions subjectively and one would also want to fend it off. This is human nature. I don't want to thus integrate a sociological back-door, but simply establish that this possibility exists. In doing so it is to be noted that a subjective treatment to this situation can be considered as absolutely reasonable, but not with the means which we are here calling 'justice' and 'right' because these means require an objective view. This is very important for the comprehension of functionality of private security. But it is conceivable that a litigable violation is simply given by the ethical values of a society, e.g. not to hold drugs or to have respect for traditions.

The Legal Black Hole

However, what happens now in the case of conflict, where there is no consent since no one had struck up a contract (be it, because one didn't want it, one forgot it, or one thought it unnecessary)? Such situations will always exist because it is impossible to control every thing. — So, when no consent has been decided as yet and there thus exist no rights but it comes to an inescapable conflict — what then? The question is how one can liberate oneself from the undesirable primal state in which everybody does what he wants and in doing so initiates violence but which has not been conceived legally because it was not defined. If one wants to end the conflict, it can only mean that one strives to end the initiation of violence. But what is an initiation of violence? Somebody, say, starts to make a noise and his neighbor is affected. But the question whether noise is violence is subjective. There obviously is a problem. If the problem is to be resolved by consent one can say: If somebody declares that the opposite side is initiating violence then he has to give reasons why this is so. We had already developed this conclusion because rightful enforcement of right means a priori to have to substantiate a claim. However, substantiation our subjective problem has not yet been unequivocally removed. Certainly it will help to qualify excessive noise as violence but no amount of expert's opinions on noise can answer the question objectively. Thus one will never be able to dispose of this problem entirely. The only way out is to find consent by agreement about possible noise. And then one may judge objectively. Thus consent is a technique to objectify subjective matters which are a fact of life, and in fact infinite in number. Another possibility doesn't exist. The consent is the consistent extension of the Categorial Imperative because this doesn't allow more than the examination whether one's own actions are morally justifiable. And how better can one make sure that ones action can be the will of everyone else too than through verification by consent?

The Statists' simplistic idea is to say now: "What? The tool to fix missing consent is to be the search for consent? No headway will be made that way!" Of course it could be that no headway is possible from here. But government solutions don't replace at all the legal situation of a consent. If one is wrangling about a matter without government then one is not in agreement over the same matter simply because one has a government instead. Only a position of power could be found. And the same would take place without government but also without the possibility of misusing the state for one's own murky goals.

The crucial point is so therefore is the ability to evaluate the initiation of violation objectively. As a rule you know very well when someone initiates violence against someone else. Nonetheless enough situations remain which are quite tricky.

A classical situation in which rights need to first arise is eagerly made out to be the so-called protection of unborn life, by which one considers any form of life as in need of protection.

But we must ascertain as a result of our analysis that only beings which can accept rights can possess rights. It doesn't make conceptual sense to contrive a legal entity which can't be one. So, whoever uses force to assert that a being has to be addressed as legal entity has also to legally show that the same being is able to accept rights, otherwise his claim has nothing to do with consent and thus nothing with rights, either. Here one may object that unborn life will later grow into a state which enables it to accept rights, i.e. it would become later become a legal entity. But this argument is not sufficient. Otherwise one could (as the popes would want to see) prohibit contraception, and claim afterwards, that this was in the interest of the emergent legal entities.

Further Norms

One may now dispute whether there are further norms which must be introduced into a norm system. For example, it is demanded of a free order that a conflict resp. a misdoing may not lead to a profit for a complainant. If this were so, people would be motivated to provoke conflicts in the intension of making a profit through it. On the other hand, only the injured party may fittingly value his damage, because this is a question of subjective evaluation. There is no objective solution from outside. It is a question of moral estimation to determine which approaches here shall be the 'right' ones and which will become fixed values. Rothbard (2003) made in his book 'The Ethics of Liberty' a lot of such proposals which seemed him to be useful in a free order and one may assume that his draft would be practicable. But this has nothing to do with the question of which objective base arises from consent. 12 One can finally only remark which demands may not flow in as further norms if the concept of consent and right should then become contradictory and call everything into question. This can not be wanted simultaneously.

Both in a free system and in a state it is possible to protect oneself with all means against violent treatment, as long as one is able. Ultimately, one will want to do it with all legal means. This will happen, and it makes no sense to close one's eyes to this fact. But what absolutely has to be avoided in a consensual rights-system in order to preserve its stabilty is the mixing of subjective and objective treatment, i.e., that the judiciary (which is only established to decide about objective values) is manipulated to work with indefinable packages of rights of all sorts of subjective trails (so for example positve rights, vague legal terms, social incapacitation etc.).

This could change nothing about the objective evaluations. A constant c remains a constant c. But when objective and subjective values are mixed into a conglomerate, so when the constant c isn't longer decisive in a trial, only the subjective contemplation with a variable x to y=c*x, thus when one may not pass one's judgment on the grounds of c but only on y, then one can no longer speak of objective judgment, and the basis of any objectively justifiable rights enforcement would be eliminated. This is the greatest danger in the handling of 'justiciary'.

All that doesn't mean that subjective valuation makes no sense or is doomed. No. The enforcement of subjective evaluation can't be avoided at all, but the enforcement of subjective evaluation has no place in the area of justice. Of course it is not so simple. At all times, people will conceal, simulate, lie and swindle. There will always be attempts to misuse the judiciary and arbitration through subjective notions. But one does not need to make a virtue out of it.

A Proof

Now, I have arguably caused quite a stir at the traditional liberal thinking and its concept of property. Finally, I should, as someone who does not have the credibility of a great libertarian scholar, be able to put to test my own statements. I have claimed that the norm theory based on the concept of consent is more simple and more accurate, and that it is suited in this way in order to avoid problems, which must come in to affect by the using the property-concept approach. Such problems are, as widely known and stressed by David Friedman in his book 'The Machinery of Freedom' in chapter 39: "Problems", and an Austrian finds to give a closing answer without any apodictic touch difficult. Thus, I think, his list of problems provides a good proof.

One example is about the first-acquisition of land. Friedman has reason enough to be firm on this issue.13 Above, I have also written about it, that the Lockeian principle must be incompatible with consent norms. So, it sets people on the wrong track.

An other important problem is reasoned in the functioning of justice. How one can be 100% sure, that someone ist guilty? Or, what happens in the case of a hopefully seldom judicial error? Indeed it is a severe problem but it is not a problem of consent norms because a sentence doesn't need a consent with the convicted person.

These are still two examples, which should be mentioned for the sake of completeness. But I don't wish to enter into an endless discussion about Friedmans examples. There is a better way. Let us simply look for Friedman's basic proposals, which he has formulated for the usage of his critique on the property concept.

The first proposal is to reject the idea of property as a natural right.14 Are we in need of that, when we deal with consent norms? At first, we have already property defined as to be pragmatic: "'Property' is a pragmatic norm, which comes from the reason that others want to save the "fruits of their labor" too, and hence acknowledge a right from 'labor' ". (See above.) But in the issue of consent there is no defintion of the problem of exclusivity. The consent is only effective between the consenting partners themselves and consent also applies only to a certain extent, which is assigned by the consent itself. It is no problem at all to perpetrate the property claim of others in a life-boat situation, when there is no implicit agreement of everyone to everybody and when the property claim is 'only' a pragmtic claim to mutually respect property. Consent norms are not suited for the case of any uncoopertive behavior, also not in a life-boat situation; elsewhere it would be a kind of insurance. On the other hand, there is room for customs. Traditional customs in history took the task to avoid that somebody could receive inadequate benefits from such instances. In this case customary laws deliver practised solutions with great respect within a certain society. But this topic is outside of consent norms and is so outside of any universally valid and a priori natural property norm, too. Another case in Friedmans analysis which leads him to reject 'property' as natural norm arises from the positive and absolute property claim to say: "That is my property and nobody has the rigt to do anything with my rightful occupancies." because it seems to be subjective.15 But I had stressed above already, that there is nothing like that in the case of consent. Only objective agreements have the quality to be absolute.

The second proposal is already answered by the first. Friedmans proposal16 concerns to regard property norms not in this absolute nature. Instead, it should be something which seems practical in most issues.

The third proposal is:

"... to assert that the situation I have described cannot occur, that there is some natural law guaranteeing that rights violations will always have bad consequences and that committing one rights violation can never decrease the total of rights violations."

This proposal is also easy to refute. Of course all violations of consent norms must have consequences. That is the reason for their genesis. Therefore for all consent norms to be objective, in counterpart to some subjective property claims, Friedman formulates a surprisingly suited proposal which is already fulfilled in consent norms.

The following critique is that of Friedman's tip to value "necessary" right violations according to his deliberations of their merits.17 This affair is already settled by our pragmatic defintion of property itself. In this issue it is with Friedman but also with all others who belong to the traditional property concept, so with Rothbard sometimes, and not so much in Hoppe's work, though Hoppe uses the term like the whole of the traditional camp. Therefore the problem necessarily arises that the average reader must understand the norm theory always in his own unsophisticated understanding. It is a paradox situation, but it is a representative behavior that Friedman tends to feel remorseful about the "libertarian property", when he has to steal $200 in his very fictitious example in order to save the world.18 It should be clear now how one is able to hit the nail on the coffin. The consequence of this situation is that Friedman finds it all very complex,19 altough it is indeed easy to understand within the correct terms. But these terms must first be understood. This seems to be difficult sometimes when old customs affect our cognitive behavior. The naturalistic property approach did its job very well.

The Homestead Principle

After I have written all these chapters, I feel that I can not round off the dicussion without to respond directly to Hoppe's problematic part of the 'ultimate justification of private property ethics'. Hoppe has inserted the homesteading principle as a basic part into his theory. He accounts for this by an argumentum a contrario. Thereby he asks what would be "if one were not allowed to appropriate in addition to one’s body other scarce means through homesteading action (by puting them to use before somebody else does), and if such means and the rights of exclusive control regarding them were not defined in objective physical terms." So he concludes that "it would be equally impossible to sustain argumentation for any length of time and rely on the propositional force of one’s arguments" and "For if no one had the right to control anything at all except his own body, then we would all cease to exist and the problem of justifying norms simply would not exist. Thus, by virtue of the fact of being alive, property rights to other things must be presupposed to be valid. No one who is alive could argue otherwise." So Hoppe (EEPP, 342) thinks that life would be impossible without existing property rights and therefore he assumes implicitly that property rights must be axiomatic. At first it is not a satisfactory methodical proof to draw a conclusion only from asking what would be in the converse case. Further I stated already that 'property' must be an abstraction from consent norms. But with Hoppe's argument there is no need for consent. It would be well enough for him firstly to invest 'labor' into a scarce resource and to base oneself on the Lockeian principle. He reasons this again by asking what would be in the absence of aquiring the right of exclusive control over goods by homesteading action. "One would have to interrogate and come to an agreement with the entire world population to make sure that one’s planned actions would not change another person’s evaluations regarding his property." Or in other words, nobody could invest labor; i.e. nobody could continue with his actions, before he has not convinced the entire world population of its own enterprises (EEPP, 343). In this szenario ones own action would rest on the actions and evaluations of other people. Therefore Hoppe's view of true property rights seems to be suitable for the postivist view. In that view there is only one absolutely exclusive property law possible when it should be valid for all humans. If it is not valid to some people then they could own this property himself and others could appropriate it again and again until everybody owns everything and nothing. (So Hoppe says: "Property rights cannot be conceived of as being timeless and nonspecific regarding the number of people involved.") But the world that Hoppe envisions in that is not so black and white. In the first instance I could consult the same kind of logic as Hoppe. When Hoppe claims that 'property' is necessary for human live at all then it must be true that there is no kind of Lockeian principle acquired property that itself would question human nature. Otherwise this fact alone would reduce Hoppe's logic at this point ad absurdum. I will bring such an example but before that, we must study a further argument by Hoppe to justify homesteading. He is using again an argumentum a contrario:

"If a person did not acquire the right of exclusive control over other, nature-given goods by his own work, that is, if other people, who had not previously used such goods, had the right to dispute the homesteader’s ownership claim, then this would only be possible if one would acquire property titles not through labor, i.e., by establishing some objective link between a particular person and a particular scarce resource, but simply by means of verbal declaration."

We look on a situation when someone will take a thing away from you without to have invest 'labor' into it as you yourself did. Tough it is true that this is no valid norm from the taker's view when he has recognized your 'valuable' work with respect but for all that he will abrasively take possession of your good. This is rightly called 'aggression'. But the rest of the issue is fraught with problems. Firstly he must not regognize the labor - maybe this is simply a communication problem. Secondly he could undervalue your 'labor'. He may claim that it is useless what you are doing and you should show that what you are doing has any need and it is not excessive wasteful, only serving your well being or striving for power. So you may mock the investment of 'labor' in order to get control about a resource. Because 'labor' is subjective from both views, the one spending labor can only get an owner recognition by his hint that many others are recognizing his work as genarally 'valuable'. The argumentation is breaking down in this moment into a pure discussion of subjective values and this makes it even impossible to find the ultimately right norms. Let me visualize this problem by an extreme example: Someone is sucking off the air from the athmosphere in order to create a new planet in the outer space or in order to produce solid matters from oxygen. He may do this since air is counted as a free good and he is spending labor into free air to transform it for his new end. But at the same time he is slowly withdrawing the natural basis of life from an entire humankind and one day you start to realize that air is 'scarce'. Suddendly everybody would be responsible for his own air and his own atmosphere and everybody has to suck off air for his own aims. This example seems a bit far-fetched. But please think about what had happend in this kind in the times of homesteading land and settlement. At first there was enough land. As time passed the need for land became greater and people had more and more conflicts about it. They set fences and they declared exclusive property rights to their lots of land. In the case of land this usage for imigrants is not very difficult when they are searching new lots. Maybe it is rather mutually beneficial in order to get the own lot, too. But other conseqences go through the life of the nomad groups. Settlers have taken away land, and more land, and the nomads were have been forced also to do comprehensive homesteading action with land. But this was not possible because of their mode of life. The sedentary way of live however was more successful. It has used the resource of the land more intensively. It could produce more food for more people to live off the same land. These people used other customs and other respects of 'property'. So it could happen that the property of land gains another enforceable position against the old lifestyle. It was not so that the sedentary way of live was the 'better' lifestyle. Just imagine the lack of protein and the diseases that increased through early agriculture. It was a change of paradigm with many unpredictable consequences. So it is at least from the ethical view a discussion of values with winners and losers in practice. I made hence clear that my far fetched example with the accumulative homesteading of air has even a prominent forerunner in the homesteading of land.

That Hoppe is saying that the absolute and exclusive property right rises from Lockeian principle is due to the subjective evaluation of 'labor' and therefore it can not derived as a priori norm. It can possibly be derived that someone who doesn't respect the property of someone else cannnot expect that he may own the same kind of property in the same form. But one can actually 'find' these facts only in the process of a consensus. And one can not assume such facts as property without a consent. Otherwise it would mean that any absurd 'labor' at a scarce resource would produce a legitimate claim to it. Hoppe didn't solve this problem in his descriptions.20 This discussion makes clear in any case that the Lockeian princple doesn't work due to the subjectivity of 'labor'. Therefore the principle of homesteading doesn't belong to the catalogue of a priori norms when there are different views about the respect of 'labor'.

An other question is if social consequneces would arise when the absolute and exclusive property right does not exist but it exists instead an intersubjective consensual right to property while opponents wrangle about the occupancy since they don't recognize the Lockeian 'labor'. This would mean that one having the best respect to his view of property can enforce his claims in every non-monopolized society. Thus it wouldn't just fall into place, for example, to extract all oxygen from athmosphere or to pump all water from the ground, and it wouldn't arise also automaticly an endless intersubjective regress with everybody to enforce his exclusive ownership. This view has a very simple background. The solution connects at the defintion of property. Therefore that property is a very practical issue which should make things in life easier so the solution must practical, too. In history this has not been otherwise. All societies without monopoly of force had an old customary law which had been developed in many centuries. Somalia is still an example of this. All aspects which one must call subjective are evaluated inside of customary law. The customary law is not compatible with consent norms but that is not its task. The important effect of costumary law is that you can't abscond from it. It constitutes among other things general exclusive property rights without former consent on the fact that it is enforceable due to social acceptance and not because this norms would be up to the standard required by Hoppe. However, it is possible that just the Lockeian principle to invest 'labor' into a free good is seen as valid norm to claim property. But there is no necessity that this must be so. Nevertheless, if one refrains from those aspects then Hoppe's 'ultimative justification of private property ethics' is very useful since his a-priori-arguments – as I have used throughout this whole article – can be transformed without problems to a natural and logical derivable justification of consent norms and so Hoppe's work delivers nevertheless the ultimative justification of libertarianism. The logical seperation means that the logic derivable norms belong to consent norms while subjective norms (which are known also as customs and morals) belong to the customary law. The later ones are norms which are 'valid' since the 'public' gives them a 'common' task - right or not. The known problem is that the organized public body uses norms of subjective evaluation to everything regardless of their subjective character because its character, defined by monopoly of force, is formed to supress the necessity to differ between these words goting even a very own meaning in the rule of law view.

Bibliography

Apel, Karl-Otto. The Apriori of Communication and the Foundations of the Plumanidcs in: Man and World, 5.l (1972): 3-37. Reprinted in : I. W. Nauta (Pub.): Het Neopositivisme in de Sociale Wetenschappen, Amsterdam: Van Gennep, 1975.

Barnett, Randy E.. 1986. A Consent Theory of Contract. Columbia Law Review 86 (1986): 269-321.
Reprinted in The International Library of Essays in Law and Legal Theory (L. Alexander ed.) Dartmouth Publishing Co., 1991. <www.randybarnett.com/aconsent.htm>.
Revised and incorporated in Rights and Remedies in a Consent Theory of Contract in Liability: New Essays in Legal Philosophy (R.G. Frey & C. Morris, eds.) Cambridge University Press, 1991.

Friedman, David D.. 1989. The Machinery of Freedom: Guide to a Radical Capitalism. 2. ed, Open Court Publishing Company, 19 April 1989 (first 1971). <www.daviddfriedman.com/Libertarian/Machinery_of_Freedom/MofF_Contents.html>.

Hoppe, Hans-Hermann. Eigentum, Anarchie und Staat - Studien zur Theorie des Kapitalismus , Studien zur Sozialwissenschaft 63. Opladen: Westdeutscher Verlag, 1987.

———. A Theory of Socialism and Capitalism, Kluwer, 1989 (Mises Institute, 2007).

———. 2006. The Economics and Ethics of Private Property, 2th ed, Auburn, AL: Ludwig von Mises Institute, 2006. (Boston: Kluwer Academic Publishers, 1993). <www.hanshoppe.com/publications/Soc&Cap7.pdf>.

Kinsella, Stephan. Defending Argumentation Ethics: Reply to Murphy & Callahan, anti-state.com, Sep. 2002. <www.anti-state.com/kinsella/kinsella1.html>.

———. 1994. The Undeniable Morality of Capitalism, Review of The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy by Hans-Hermann Hoppe (1993), St. Mary's Law Journal 25.4 (1994): 1419-1447.

MacCallum, Spencer Heath. The Rule of Law without the State. Ludwig von Mises Institute, Mises Daily, 12 Sep 2007. <mises.org/story/2701>.

Rothbard. Murray. The Ethics of Liberty, Auburn, AL: Ludwig von Mises Institute, 1982-2003

Watner, Carl. 'Oh, Ye Are For Anarchy!': Consent Theory in the Radical Libertarian Tradition.Gramling, S.C.: Journal of Libertarian Studies 8.1 (Winter 1986). <www.mises.org/journals/jls/8_1/8_1_9.pdf>.

———. Ropes of Sand: Voluntaryism and Secessionism, Voluntarist.com, Number 102, Feb. 2000. <www.voluntaryist.com/articles/102.php>.

Zaibert, Leo. Toward Meta-Politics, Quarterly Journal of Austrian Economics 7.4 (2004): 113-128. <mises.org/journals/qjae/pdf/qjae7_4_8.pdf.>.

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Footnotes

*	The German origin Konsenstheorie is online at my website
**	For an overview about Hoppes argumentation ethics, see Stephan Kinsella (Defending) and the selected topics on Hoppe's website at <www.hanshoppe.com>.
1	In economics, one calls it also "transaction costs".
2	It is even a historical controversy (e.g. with John Locke, Thomas Jefferson, Abraham Lincoln, Lysander Spooner, Jonathan Smith, Ayn Rand) that state and consent is an impossible combination. It have been pointet out many times that "government by consent" or "consent of the governed" must meet directly anarchy and the imagination of "tacit consent" or "agreement by voting" are fog bombs respectively. Resp. see also Carl Watner (Consent)
3	Like this quote: "Direct consent between citizens and government does not pose a problem of message distortion but may pose the risk of atomizing citizens, rendering them less effective individually than they might be as members of a group." (Source: <www.urban.org/UploadedPDF/310987_nonprofitadvocacy_vol3.pdf>)
4	See also Carl Watner (Ropes).
5	For more see about the apriori of argumentation and communication by Hoppe (SocCap, EEPP). especially the ch. "On the Ultimate Justification of the Ethics of Private Property" in "The Economics and Ethics of Private Property". <www.hanshoppe.com/wp-content/uploads/publications/econ-ethics-10.pdf>.
6	The concepts are defined by Hans-Hermann Hoppe in chapter "Property, Contract, Aggression, Capitalism, Socialism" of "Socialism & Capitalisim" ( 7-18). <www.mises.org/books/Socialismcapitalism.pdf>.
7	See also the "Apriori of Communication", which was firstly rendered by Jürgen Habermas and Karl-Otto Apel (1972). An Apriori Rule of Communication (or discourse) is characterized by one is caught by trying to deny it because that means an entanglement of performative contradictions because one is disputing the rules to which he must have agreed by his acting in his own current utterance.
8	Exceptions are Robert Nozick and the more unknown theorist Adolf Reinach. Latter was himself an 'apriorist'. For more see Leo Zaibert (115): "That the state is convenient, and therefore that there is an (obvious) answer also to the ontological question is, most of the time, simply assumed, hardly ever argued for in any systematic way."
9	Hoppe (EAS: 72): "wenn Argumentation die wechselseitige Anerkennung eines exklusiven Verfügungsrechts jeder Person über ihren eigenen Körper voraussetzt, und wenn man ein exklusives Verfügungsrecht über ein knappes Gut als Eigentum an diesem Gut bezeichnet, dann setzt Argumentation Eigentum am eigenen Körper voraus; und wenn, weiter, solange argumentiert wird, eine Interaktion übereinstimmend als konfliktfrei bewertet wird, und wenn 'rechtfertigen' nicht nur einfach heißt, sprachlich einseitig als gerechtfertigt behaupten, sondern übereinstimmend rechtfertigen, dann ist das Eigentum am eigenen Körper eine Norm, die als übereinstimmend rechtfertigbare Regel gelten muß: jeder, der versuchte, irgendeine zum Zweck der Konfliktvermeidung im Hinblick auf knappe Güter formulierte Regel zu rechtfertigen, müßte, indem er entsprechend argumentiert, das Recht auf Eigentum am eigenen Körper bereits als eine allseits gerechtfertigte Norm voraussetzen; und umgekehrt müßte sich jeder, der das exklusive Verfügungsrecht einer Person über ihren Körper bestreiten wollte, notwendig in einen Widerspruch verwickeln, denn indem er so argumentierte und für sein Argument Zustimmung suchte, müßte er bereits implizit die Geltung der von ihm bestrittenen Norm voraussetzen."
10	Suchlike in Hans-Hermann Hoppe (EEPP): "Hence, one would have to conclude that the norm implied in argumentation is that everybody has the right of exclusive control over his own body as his instrument of action and cognition. Only if there is at least an implicit recognition of each individual s property right in his own body can argumentation take place." ... "Any person who would try to dispute the property right in his own body would become caught up in a contradiction, as arguing in this way and claiming his argument to be true, would already implicitly accept precisely this norm as being valid."
11	A good example therefore is the Homestead Principle. "In order to get to valid negotiation and thus to any valid agreement or consent, the negotiators need to be free of coercion or threat to their continued well being. Hoppe says that this therefore entails property in self and in the parts of the environment that provide the food, etc. needed to continue life. But, the Homestead-Principle provides for the continued claiming of unused or unclaimed items and conversion of them into personal property. Restricting that does not necessarily involve a threat to negotiation. But, this all involves the definition of property. Or perhaps this would or should lead to a new definition of property and property acquisition. It seems to me that the current/historical ideas on property have been highly distorted by centuries of state controlled societies. And there I think, Rothbard & Hoppe did not divorce themselves enough from that historical tradition." (Quote of Winston Ward Johnson, 2005)
12	Leo Zaibert (115) calls it "methodological individualism".
13	Friedman writes: "One tempting approach to such issues is to try to go back to the origin of property in land. If we knew how I acquired ownership of land, we might also know what that ownership consists of. Unfortunately, we do not know how I acquired ownership to land. John Locke, several centuries ago, suggested that we acquire land by mixing our labor with it, but he did not explain how, when I clear a piece of forest, I acquire not only the increased value due to my efforts but complete ownership over the land. How, in particular, do I acquire the right to forbid you from walking across the land--something you could have done even if I had never cleared it? Later libertarian theorists have suggested other grounds for establishing ownership in land, such as claiming it or marking its boundaries. But no one, so far as I know, has presented any convincing reason why, if land starts out belonging equally to everyone, I somehow lose my right to walk on it as a result of your loudly announcing that it is yours. It is easy enough to show reasons why the conversion of common property into private property is a good thing--why it makes us better off--but it is very much harder to derive property in land from some a priori theory of natural rights. That is why, at the beginning of this book, I conceded that the basis of property in unproduced resources such as land is shaky, and argued that it does not matter very much, since only a small fraction of the income of a modern society is derived from such resources."
14	"One solution to this problem is to reject the idea that natural rights are absolute; potential victims have the right to commit a minor rights violation, compensating the owner of the gun afterwards to the best of their ability, in order to prevent a major one."
15	"Another is to claim that natural rights are convenient rules of thumb which correctly describe how one should act under most circumstances, but that in sufficiently unusual situations one must abandon the general rules and make decisions in terms of the ultimate objectives which the rules were intended to achieve."
16	What Friedman means with 'absolute': "It seems obvious that we want property rules that prohibit trespass by thousand megawatt laser beams and machine-gun bullets but not by flashlights and individual carbon dioxide molecules. But how, in principle, do you decide where along that continuum the rights of the property owner stop? We want rules that prohibit me from demonstrating my marksmanship by shooting a rifle at flies hovering around your head but do not prohibit all airplane flights. We want rules that prohibit trespass by elephants but not by satellites orbiting three thousand miles over my roof."
17	"All of these positions lead to the same conclusion. Under some circumstances rights violations must be evaluated on their merits, rather than rejected a priori on conventional libertarian natural rights grounds. Those who believe that rights violations are always undesirable will be sure that the result of the evaluation will be to reject the violation, but that does not mean that they can reject arguments to the contrary without first answering them. Any such argument claims to provide a counterexample to their general theorem, and if one such counterexample is true the general theorem must be false."
18	"You cannot justify stealing as a way of minimizing total coercion. Being killed by an asteroid is not coercion, since it is not done by a person. After the asteroid strikes there will be no more coercion ever again, since there will be no one left to either coerce or be coerced. Speaking for myself, the answer is that I steal."
19	My purpose is to argue that libertarianism is not a collection of straightforward and unambiguous arguments establishing with certainty a set of unquestionable propositions. It is rather the attempt to apply certain economic and ethical insights to a very complicated world.
20	There is also an useful economic possibility in multiusing of scarce resources by different owners with different uses. The absolute and exclusive property right would grant the owner always the complete range of rights to any use to his property because there is no need for a consent about different uses after the owner had homesteaded his property anyway. The owner with the right to manage a lot (or of that kind of property) may disavow other uses for others, e.g. for hunting, mining, to walk the dog, to park a car or to do something else on the lot what doesn't affect the original form of homesteading.