This essay was written by guest-author Will Porter.


There is a peculiar breed of libertarians who are avowed ethical nihilists. The works of Ludwig von Mises, and more generally, the tenets of Praxeology, are often held as a solid case against any kind of “true” ethic or set of norms. It is said that because men determine their values subjectively, that no ethical judgment can ever be spoken of as being true or false, legitimate or illegitimate, justifiable or not. The gap between “is” and “ought”, they say, seems to have created an impasse for political and ethical thinkers, and that we must therefore jettison any notion of “rights” or “objective ethics” beyond those rights and norms that are determined as a social construct, on a relativistic or utilitarian basis.

Is there any escape from this fact/value dichotomy? Can we really make any statements about ethics or rights at all if we have no solid foundation to root them in? It would seem to me that there is a route to be taken that avoids speaking of any “oughts”, or arbitrary value judgments, and it is that of discourse ethics.

First, I think it necessary to address the point that the theory of subjective value spoken of by Mises and his Austrian forebears does not necessarily negate any possibility for making ethical propositions. The descriptive economic statement that humans act, using means and ends, according to a subjectively-chosen value scale, does not mean that we can’t speak of any particular means or ends, or class of means/ends, as being potentially illegitimate or unjustifiable. This would have to be based in other considerations beyond, but encompassing, the claim of descriptive subjective value, as formulated by Mises and his predecessors.

I think it is, in fact, precisely because humans act based on subjective values that we must develop some set of ethics that shed light on the possible illegitimacy of certain behaviors and actions. It is because we cannot escape making value judgments that we should set out to determine whether any particular values, or rather ethical norms, are even conceptually justifiable.

Here I raise the distinction between “objective” and “intrinsic” ethical frameworks. The ethical nihilist will charge that no objective ethical statements, concerning things existing outside of the human mind, can ever be made. There is nothing in “nature” — whether it is the raw wilderness or in the nature of human behavior or psychology — that can be said to have anything to do with ethics. I see a different route in what I am here terming intrinsic ethical considerations, having to do with intrinsic qualities of a certain action, claim, or proposition. It is not a value judgment that guides us here, nor a metaphysical claim about human nature, but an appeal to logic and even to common sense reasoning.

The task of discourse ethics is to root norm propositions to the intrinsic properties of argumentation itself. The discourse ethicists gauge the legitimacy of any ethical claim by applying to it the inherent presuppositions of discourse, which, by arguing, the speaker has already acted with a preference toward.

The act of engaging in argument has certain implications about the value-preferences of the speaker, preferences that, despite what the speaker may say, are demonstrated through his very action. If a speaker is to make the case for some norm that is directly inconsistent with the already-accepted norms that they have demonstrated through action, they can be said to be engaged in a performative contradiction. It is not here considering value preferences of my own choosing, imposing them onto somebody else, but simply applying the values that any person making a justification-claim, I.E. an argument, has already shown to be their preference.

To argue, one must accept certain norms to be valid. An instance of argumentation consists of two or more parties engaged in a peaceful exchange of justification-claims, for if an argument is to truly be an argument; both parties must be free to make their case and to change their mind. Anytime a person makes an argument, he implicitly accepts that he is willing, at least for the duration of the discussion, to refrain from using physical force or threats of it, since to do such a thing would negate the point of making justification-claims in the first place, to change the mind of another person using words and persuasion rather than weapons or force.

Argumentation is an activity that is itself very human. The capacity for the use of truth-claims, backed by reason and evidence, to sway another person’s mind is unique only to a certain kind of being, a rational, conscious, self-aware being. No part of reasoning an argument involves force. As said above, this would negate completely the entire point of arguing in the first place. To actively, purposely engage in argument, the use of words to change the mind of another person, you implicitly, by the very nature of your actions, by the very meaning of argumentation, agree to refrain from the use of force against the other participant(s).

Another way of seeing this would be the Estoppel argument, as espoused by Stephan Kinsella. The Estoppel approach basically just shows that an aggressor cannot reasonably object if his victims use force to defend themselves. For a person to demonstrate a preference for aggressive violence, through committing violent acts, they essentially abandon any possibility of legitimate objection to somebody who does the same thing to them in retaliation or self-defense.

Preferred values are demonstrated through action. To argue a case immediately in opposition to, or in conflict with, those demonstrated-values is to commit a performative contradiction.

So what do we really get out of this? It doesn’t give us any kind of metaphysical, externally-existing set of “natural” or objective ethics or rights; this position may indeed be a lost cause. We can from this, however, know that there are certain ethical propositions which cannot, through argumentative exchange, ever be justified.

The remaining set of conceivably-justifiable norms, which do not contradict the presuppositions of discourse, stand to be the only ones that could possibly be argued for without any implicit contradiction. It is not that one physically cannot argue for contradictory norms of course, but only that one could never reasonably or correctly argue a persuasive case by employing such contradictions.

Any particular instantiation of discourse exemplifies the pre-accepted norms that both sides must adhere to (in order for the situation to be genuinely described as “argumentation”). If we, as ethicists, were to take these inherent principles and apply them universally to all human behavior, we have now developed a proposition that cannot be effectively argued against, since to do so would be to violate the norms one has already presuppos ed, and to contradict one’s own position.

The conclusions are necessarily libertarian because the values implicit to argumentation are those of non-aggression. We must grant, in the course of argumentation, the right of self-ownership to the other participant. If one expects for his argument to change the mind of the person he is arguing with, he must accept that this person is free to choose what they believe, and more fundamentally what they do with their body, how they act. This principle of self-ownership or self-dominion cannot functionally be argued against, since to make the argument you must grant the principle as true, even, in a way, self-evident.

What else, if anything, is implicit to the act of making an argument? Well first, that both participants be alive. The barest of requirements for survival consist, at least, of taking objects out of the external world and making them our own, consuming them and making them a part of our body, a “property” of ourselves. This is of course true for food and water, and in the case of shelter, one must construct something for himself, using scarce goods that were at some point taken from un-owned nature, “homesteaded”.

This act of privatization is similar, or even analogous, to that of making food/water part of our own body, and is nonetheless a necessary precondition for survival to some degree or another.

So if survival is necessary to make an argument, and if to survive means to have, first, self-dominion and also to make goods private, our own and not someone else’s, then this too must be granted as a necessary condition for argument.

One cannot dispute whether it is legitimate to make a good their own, because to argue in the first place implies that you have done that, and so long as you wish to keep living, that you will continue to do it. To argue against this is to defy the very preferences that you have already established, in light of your being alive. These are preferences that favor the right to extract goods from nature (or through trade once owned) and to privatize them, giving one the right to exclude others from their use.

Since goods are scarce (I.E. rivalrous), there is a potential for conflict over their use. The only conceivably justifiable norm here, then, must be that of the first-comer. If we attempt to establish any other ethic for the rightful-acquisition of a good, we will immediately run into a conflict-creating ethic, defying one of the sole purposes for norms in the first place.

A first-comer cannot know who all the potential late-comers may be, so to propose a norm that establishes a right for late-comers to some homesteaded good acquired by the first-comer, nobody could ever own anything to consume and sustain life with. If it were strictly required that every first-comer should attain approval or permission from all possible late-comers, the human race would never have survived to rise out of a beast-like, animalistic existence. While there are infinite amounts of potential late-comers, the first-coming homesteader has a unique position in that there is only one first-comer. This is the only justifiable, no less the only practical and practicable, norm that can be proposed in regard to homesteading or the legitimate acquisition of consumable, excludable, scarce private property.

With a meta-analysis of the intrinsic properties of argument and justification-claims, we can derive principles that are relevant to ethics and proposed norms for human behavior. We have not shown anything to be “objective”, but we have established some boundaries for the types of moral propositions that can possibly be justified. This ethic is universalized to apply to all instances of human interaction or exchange, since to discriminate between certain classes and situations, exempting its application in some instances, would be unjustifiably arbitrary. The same fundamental properties apply to all conceivable scenarios and people. The moment one commits to discourse and opens their mouth to argue against these principles, they have already granted them to be true.

From a Praxeological point of view, we can look at argument as a specific kind of action employed by an individual. What is the purpose of argumentation? What is the purpose of a linguistic exchange during which two or more parties attempt to convince each other using truth and justification-claims? On a basic level, the aim of such an activity is to change the mind of the opposing side; this is the entire purpose of making a genuine truth or justification claim. If the ends aimed at by employing a justification-claim exclude a certain class of action (aggression), then it becomes inherently unreasonable to make a justification-claim in favor of what discourse excludes, something that immediately contradicts the purpose of the activity in the first place.

Here I will conclude with my summary analysis of discourse ethics, distinguishing between claims of objectivity, and those which point out intrinsic properties of a given concept (in this case, argumentation).

I think it also important to mention some potential issues with the concept of ethical nihilism altogether. As I mentioned at the beginning of this article, there is a group of self-avowed nihilists who also call themselves libertarian (or hold a political position identical to it). This may be a lack of imagination on my part, which is course not an argument, but one has a hard time understanding how a nihilist can also be a libertarian.

To be a libertarian or to advocate the position (even if that’s not what you call yourself) is to be an advocate for human liberty, or freedom; that being the social state of freedom where each man may do as he pleases provided he allows other men to do the same.

How does a nihilist go about advocating for such a value? If achieving human liberty means a certain class of behavior (aggression) has to be halted, or drastically reduced on the scale of institutions – primarily here referring to the state – then it would seem the ethical nihilist has put himself in a bind.

The nihilist may argue that human liberty is economically efficient, and that therefore we have a wertfrei, or value-free, basis for the advocacy for freedom. But why value efficiency? There’s nothing stopping anyone from valuing waste and slavery, or death and destruction. How can the nihilist ever object to one who proposes a norm that involves such things?

The nihilist may not even desire to object, but this does nothing to prove his position, which would have to be considered just as good, just as correct, just as convincing as the one advocating slavery and destruction.

On a utilitarian basis, we could speculate that most people probably agree that freedom and efficiency are desirable, and this is essentially the position that Ludwig von Mises takes. But this doesn’t put us on very firm ground; the position would be malleable wholly to fancies of the masses. If in the future it were somehow shown that most people don’t prefer freedom (like we can see today), then all support for the utilitarian position evaporates.

Here we can make another distinction between Hypothetical and Assertoric Imperatives. The utilitarian or Misesian approach to ethics is structured in a hypothetical “if – then” fashion. If humans generally value peace, prosperity, and well-being, then we may expound on certain implications of that. Mises was sort of an “if – then” type of guy, and this mode of argument is certainly useful and carries a lot of weight as a tool of persuasion when speaking with proponents of other, non-libertarian philosophies.

But there is a stronger form of this argument, and it directly applies to the discourse ethics framework as explained above. The Assertoric Imperative is formulated on a “because -then” basis. Because we do, in fact, demonstrate preference towards particular things, intrinsic to the very act of discourse itself, then we arrive at certain conclusions, namely those of the non-aggression principle and the tenets of property rights, I.E. the libertarian philosophy.

A similar sort of Hypothetical Imperative applies to ethically-utilitarian economists who engage in purely empirical studies; although this differs from the approach Mises took. Mises engaged in economic science derived from a priori axioms, rather than tentative hypotheses. For Mises, the hypothetical aspect came in with regards to ethics only, whereas the empiricists here concerned get their utilitarianism out of hypothetical-empirical economics.

The conclusions derived from this sort of empiricism can never really be said to be true. They are, as is the case for all empirical science, always falsifiable, always waiting to be proven wrong or discarded.

I don’t seek here to delve into a discussion on economic methodology, but those thinkers who base their utilitarian ethical positions on notions of economic efficiency; their ethical position waits to be overturned at any time as well, since the science they derive it from is always subject to upheaval.

Praxeology establishes logically-true facts concerning economics, so an “if – then” form is certainly acceptable. When the conditions of the “if” are satisfied, the “then” aspect necessarily follows with something concrete. The case is not so clear with purely empirical economics, whose conclusions are not verified by logical rigor, but by tentative hypothesis.

However, while the “if – then” form is more appropriately used by Praxeologists or Austrian
economists, as contrasted with the Empiricists, the Assertoric “because – then” formulation is overall a philosophically stronger argument than either of the above for establishing a framework of ethical norms.

But I digress, back to the nihilists. Freedom is necessarily a libertarian state of affairs in which the non-aggression principle and the general tenets of property rights are abided by, explicitly and on purpose or not. This condition of society is defined by discreet and specific behaviors, or rather behaviors not engaged in. Even if one argues purely from economic efficiency, he is still advocating that certain behaviors be stopped, and that other behaviors not be interfered with.

How could a stateless society be achieved, even conceptually, if the behavior of aggression — the bread-and-butter of the state — were not in some way stopped or reduced? Furthermore, how can one be an anti-statist if one does not propose that this aggression be stopped, or at least be opposed to it?

The libertarian position, the anti-statist position, is a political-ethical one. Trying to slip around this fact only leads to smuggled-in value judgments. The nihilist who denies all possibility of making valid/invalid ethical claims must also deny any possibility of making valid/invalid political proposals. This condemns him to silence on such matters.

But these particular nihilists certainly aren’t silent; they’re open enemies of the state. This, I believe, is an untenable position. Denying any possibility of evaluating ethical norms as valid and adopting a stance on a political ethic, one that favors certain values over others (and says that others should, too), is simply inconsistent.

It appears that to adopt any political or ethical position, one must be something other than a nihilist. To advocate for any political or ethical position involves trying to get people to change their behaviors in various ways. If the proponent has no better reason for his position other than “because I prefer it”, it doesn’t seem that the position really has any footing in anything at all. The next person could just as easily come along and propose the precise opposite position, and the nihilist would have nothing to say.

Finally, and with this I will conclude, the type of thinkers who can be deemed “rights-skeptics” tend to take yet another peculiar stance. If a rights-skeptic will deny the legitimate-enforceability of Right X by Person A, he inherently ascribes some right to Person B. If Person A does not have an enforceable right to, say, protect his property (because, for them, rights do not exist at all), then any attempt made by Person A to do so could be seen as some kind of infringement on Person B, therefore giving B a right to not be infringed upon when he tries to take or use Person A’s alleged property. To say that Person A has no legitimately-enforceable right against the aggression of Person B is to essentially give to B the rights you have denied to Person A in the first place. (For more on this, see N. Stephan Kinsella – “New Rationalist Directions in Libertarian Rights Theory” – Journal of Libertarian Studies)

If we can develop a framework of ethics that is rooted in intrinsic facts – as is Praxeology — that can be said to be universally valid, then we will have developed a theory of ethics that is universally true. It is not values themselves that we should seek to “prove” as legitimate, but the parameters of possibly-justified norms, extracted from the intrinsic qualities of argumentation. With this structure of thought, one hopes to see new and fruitful projects delving into the intricacies of the libertarian ethical framework and moral philosophy as a whole.