Law and Ethics--A Great Divorce?

by Marcel Votlucka

Exclusive to STR

January 20, 2009

If a woman enters a bakery and steals a loaf of bread to feed her starving child, is it wrong?  

Well, technically, she violated the baker's rights by trespassing on his property (the bakery) and stealing the product of his labor (the bread), so under our beloved non-aggression axiom, the baker has every right to prosecute her for aggressing against his rightful property.  Ah, but what if she expresses willingness to compensate the baker in some form?  I mean, she didn't go out of her way to harm the baker's life or rob the man of all he had, just a loaf of bread in an extreme situation, no more.  Unfortunately for her, the strictest interpretation of property rights holds that she is wrong and the baker has every legal right to have her punished, or prosecute her, or even shoot her for breaking into his shop . . . .  

Because, you see, "aggression is aggression," whether it is a junkie stabbing an elderly woman on the subway to get her purse to buy some more meth, or a desperate woman aggressing against a mere loaf of bread so that her child might live another day.  

Or try this for size:  If a Zimbabwean man happens to own a stockpile of cholera medicine in his basement, and the rest of his town is dying from cholera, is it right for him to charge, say, $10,000 for each life-saving dose while his neighbors make less than $1 a day?  Or withhold the medicine altogether?  Or is it right for the townspeople to enter this one man's home and (without harming his life or any of his other property) commandeer the medicine, thus saving hundreds or thousands of lives?  

How about this one:  A hiker is lost in the woods in sub-zero weather, and comes across a cabin with heat, a phone, and food supplies, and is faced with the prospect of entering the cabin while the owner is not home – with every intention to use no more than is needed and compensate the owner in the end of the emergency.  He WILL die otherwise.  Does the owner, upon his return, have the right to expel the hiker or prevent his entry – with force of arms if it comes to that – to protect his private property rights?  Or should the hiker just walk past the cabin, to his likely death?  

"But you can't use bizarre hypotheticals to illustrate general principles!" you might object.  And indeed I don't go much for "the ends justify the means" or "lifeboat emergency" approaches to ethical questions because it can be a slippery slope.  Dr. Walter Block, in a recent article on this subject, asserts that our critics "misunderstand the nature of libertarianism. These arguments implicitly assume that libertarianism is a moral philosophy, a guide to proper behavior, as it were.  But libertarianism is a theory concerned with the justified use of aggression, or violence, based on property rights, not morality."  This perplexes me.  Isn't libertarianism born out of a primarily moral and ethical concern for people’s liberty (their natural condition) as well as a concern for a more mutually beneficial and peaceful social network in the absence of parasitic, divisive, zero-sum politics?  More critically:  Do ethics come from the law, or does law come from our common ethics?  

When we look at these hypothetical situations from our standard “property rights” perspective, the burden on guilt falls on the woman who steals a bit of food, or the townsfolk who seize the medicine, or the hiker who enters the cabin.  But when we look at it another way, at the baker who prosecutes and punishes a half-starved, destitute woman over a loaf of bread, or the medicine man who utterly withholds lifesaving drugs, or the cabin owner who turns away a hypothermic hiker, can we honestly conclude that these people are doing the right thing toward their fellow man?  

Furthermore, it’s considered permissible for a business owner, big or small, to let go of workers through no fault of their own, and throw them out onto the cold streets in order to save a few bucks (or even if they’re running their companies into the ground!).  To my knowledge, it would not have been illegal for ferry owners to not rush their boats to rescue the passengers of the plane that crashed into the ice-cold Hudson River last week.  And there are pharmacists in the Bible Belt who refuse to issue contraceptives to women not for any legitimate medical or market reason, but because their particular holy book tells them so.  

Just because one has the legal right to do something, though, doesn't make it the ethically right thing to do.   

When we speak of "rights" and "property" and such, we are only talking in terms of a legalistic framework – a libertarian or even stateless legal framework as the case may be.  The non-aggression axiom works perfectly fine as an ethical guideline for complex human behavior and social interaction.  But as with anything else, when you try to codify it into formulaic law, well, there are lots of situations in life that don't go “by the book.”  Laws don't think.  Laws are words on a piece of paper. Laws put the complexity of human life in terms of sin and punishment. Laws can be worked around if you are savvy enough.  An act may be "illegal" even if it doesn't violate property rights or harm anyone, but a practice may be perfectly "legal" while actually causing significant harm to others (direct or indirect aggression) as well as a lack of concern for social disruption. This often seems to be the case within existing statist law.  

It's "illegal" for a man to cross an imaginary line called a "national border" in order to work and make a better life for himself while harming nobody – if he is deported and separated from his dependent children, this matters little as far as the law is concerned.  It's "legal" for factories to carelessly belch soot and carcinogenic compounds into the air that we breathe – good luck getting a cop to arrest the polluters for promulgating asthma en masse.  It was once "legal" in America to own another human being but “illegal” to help them escape from bondage.  It’s “illegal” to refuse to pay exploitative taxes, but it's "legal" for the ruling class to send a huge chunk of your hard-earned income to their allied bankers and CEOs, so they can all party in luxury while you worry about having enough to cover the weekly groceries.  

Laws and ethics can complement each other, or they can be utterly divorced from each other.  I am not saying that we give people a blank check to steal bread or break into people's cabins or forcibly take medicine from a basement stockpile.  Neither should we excuse disruptive and dangerous behavior with blanket tolerance or dubious interpretations of “emergency.”  Most of the time, legal cases are cut-and-dry affairs.  However, I wonder if there won’t still arise ambiguous situations to contend with in our libertarian society; cases that aren’t so cut-and-dry.  How are we to deal with those if we recognize that what is legal is not always ethical, and vice versa?  

I don’t have an easy answer to these questions.  But at the very least, we should recognize the limitations in the legalistic “property rights” orientation favored by many libertarians.  It is my concern that emulating statist legalism in the end might evoke the dysfunctional “sin and punishment” mentality behind statism, its formalism, and the ethical gaps in its “law”, rather than a holistic concern for liberty, rights and “the right thing” (i.e., solidarity and mutual aid).