By Walter E. Block
If I had my ‘druthers, I would have more time to thrash out with Bob Wenzel these few issues on which we disagree. Alas, I have several books I want to write, hundreds of more scholarly articles, I’m gadding about the world giving speeches, and when I’m back in my office, I’m like the girl who can’t say no to requests for skype interviews. In a word, I just don’t have the time I’d like to have to pursue this very interesting, no, fascinating, discussion I’m now having with Bob regarding punishment theory and anarchism. So this will have to be my last contribution to this dialogue. I’ll leave it to Bob to have the last word on it.
I cannot see my way clear to agreeing with my friend Bob Wenzel concerning the ultimate foundations of libertarianism. In his view, private property rights are sacrosanct. This sounds well and good to my libertarian eyes and ears until I realize precisely what he means by this: that each owner may make up his own rules; may do exactly as he wishes in his own domain; need not adhere to what in my perspective is the defining characteristic of libertarianism: the non aggression principle (NAP) based on homesteading of virgin land and legitimate (voluntary) title transfer. A man is the absolute king of his castle might well be Wenzel’s motto. I agree with this, except I add the side-order constraint that everyone must abide by the NAP everywhere.
I have already previously mentioned the case of A inviting B to his home and then shooting him dead. I regard this as outright murder, punishable to the full extent of the law, but Wenzel does not. After all, for him, this otherwise unjustified killing took place in A’s domain, did it not? And, A is the supreme ruler, he is the “decider,” of what takes place therein. I go partway in the direction of what I regard as the extreme position of Wenzel’s. I aver that A is justified in killing B in that manner if and only if A first notifies B, before the latter enters the former’s territory, that he has some rather unusual rules in operation. Perhaps A should place a sign to this effect on his doorstep, even require B to sign a notarized contract indicating he fully understands the rules operating in A’s property. Wenzel sees all such requirements as abnegations of A’s property rights. This scholar goes so far as to say that at this rate, B, and/or everyone else, will soon be forcing A to purchase such a sign from B’s brother-in-law…
There would seem to be no end to Wenzel’s divergence from properly understood libertarian principles. For example, suppose our man A entices a five year old girl to his “castle”, perhaps by offering her candy. Whereupon he proceeds to have sexual relations with this child. Wenzel would defend A against the charge of statutory rape, on the ground that this despicable act occurred entirely within A’s home. Say what you will about this rather fascinating theory, it cannot rationally be claimed that it is compatible with libertarianism, much less a paradigm case of it, as Wenzel would have it. I go further; this is a grotesque misunderstanding of libertarianism. There is a movie called “Arsenic and old lace.” Several old ladies invite men into their domain, and, then, serially, poison them. If I understand the Wenzel position correctly, I sincerely hope I do not, he would support the actions of these elderly murderesses, since they occur on their private property.
Take another case, slant drilling. C drills downward, under his own property for, say, 1000 feet. Then he turns this machine of his sideways, and continues to bore a tunnel under the property of D, his neighbor. D finds out about this, and objects, citing the ad coelum doctrine. According to this law, D, not C, owns all the territory beneath his holdings on the surface of the earth, right down to the core of the planet. How is the dispute to be settled? For the libertarian, the resolution is clear. The ad coelum doctrine is false, since it is incompatible with the sole justification of property rights for libertarians, homesteading. For Bob, I fear, C and D will have to fight it out, since for him there can be no over-riding rules to settle this dispute, at least not for the anarchist of his persuasion.
Bob maintains I am not really an anarcho-capitalist, at least not on this one issue (I have no doubt he acknowledges that I deserve this honorific on virtually all other questions). In my view, in contrast, the position he is staking out in this discussion is not even really a libertarian one. Why not? This is because, at least as I see matters, the NAP is the sine qua non of this philosophy. And, yet, Bob’s position does not allow for the centrality of the NAP. He allows it to be over-ridden by property owners. I can’t see how there can even be property owners in the first place, without the NAP, that he denigrates.