Jeffrey Tucker’s article “Against Libertarian Brutalism” (12 March 2014) describes two broadly drawn ideal types within the libertarian movement. After summarizing these, I will suggest what I think is a more fundamental distinction to illuminate the background to these proposed ideal types: the legal and the ethical must be more carefully disentangled. They are separate fields with distinct methods and subject matters. Either/or must give way to yes/and when it comes to working with such multiple fields, each of which has valuable and distinct insights to offer.

Tucker’s “humanitarians” are said to be drawn to and consider liberty in a positive context of its role in promoting individual and social flourishing and prosperity. This is above all a constructive and forward-looking appeal to the best of human social possibilities, promoting creative cooperation over both ad-hoc violence and systematic control.

The “brutalists,” in contrast, are said to emphasize a strict application of a few core principles and self-consciously eschew nuances of context, application, and image marketing. Moreover, brutalists are said to not only support, but even proudly embrace, the rights of persons to engage in what are today broadly considered negative and even reprehensible pursuits, such as for example, refusing to associate with certain types or classes of persons based on various demographic characteristics. The brutalist, in this view, not only embraces individual rights because they promote positive social values, but because they can be used to defend the rights of individuals to make what are today generally considered highly backward social choices.

With this stylized typology in mind, it is first of all fascinating to observe that the general public perception and straw-man concept of libertarianism is precisely this “brutalist” picture. In this popular image of libertarianism, it is a position that promotes a few simplistic and unrealistic ideas over any and all other competing values, perhaps due to some mysterious sociopathic refusal to integrate with ordinary society. And yet, it is also true that certain ways of presenting and discussing libertarian positions do help contribute heartily to this “brutalist” image in the popular imagination. Some statements in this genre are positively cringe-worthy by almost any standard.

While the humanitarian versus brutalist model may be of some help in advancing this conversation, I think another way of framing the background could bring additional clarity. I have come to believe that a great weakness in the heart of libertarianism has been the failure to differentiate legal from ethical issues with sufficient and systematic clarity. What are actually strictly legal-theory questions have been at times vaguely identified as “moral” or “ethical” questions when they are nothing of the kind. One origin of this has been the desire to distinguish “ethical” matters of ought from strictly economic-theory treatments of social issues. Yet not all that is non-economic is necessarily ethical in nature. In fact, much of the non-economic in social discourse is specifically legal rather than “ethical.”

The core of the libertarian position on political philosophy is a position on property theory, a topic belonging squarely within legal theory. Those who have sought to defend libertarian positions on property theory have at times seemingly fallen into the trap of downplaying the importance of authentically moral and ethical issues. The trap is sprung because proponents of alternative positions on property theory (various forms of forced redistribution) often use ethical rhetoric in their attempts to justify their various proposals for institutionalized takings.

In a developing body of work beginning in 2011 that I have labeled under the heading of action-based jurisprudence, I have sought to more carefully differentiate the realms of legal theory and legal practice both from each other and from the realms of ethical and moral theory and practice. One of the simplest ways to get across the kinds of distinctions proposed is to say that legal theory defines what “theft,” for example, is, whereas ethical theory provides advice on, among many other things, whether or not one ought to steal. That is, legal theory is fundamentally a cognitive discipline, whereas it is ethical theory (and aspects of legal practice; what should be done?) that are disciplines properly dealing with oughts and shoulds.

On this basis, the following picture emerges in terms of Tucker’s ideal types: the “humanitarian” libertarians are not willing to neglect or play down the legitimate importance of complex moral questions next to (fundamentally property-theory based) libertarianism. The “brutalists,” meanwhile, on a favorable interpretation, are concerned that misplaced attention to moral and ethical concerns could be used (and very often is used) to justify systematic violations of legal principles, principles that are among the defining characteristics of civilization.

My suggested path toward a resolution has several steps. First, all parties should seek to clearly differentiate a separate scope for legal theory and for ethical theory. They are two quite distinct fields, the confusion of which has led to unending injustice and immorality. Second, embrace the insights that are to be gained from each of these quite distinct fields, and apply them each in suitable ways.

Legal theory provides the definitions of property boundaries, the outermost boundaries within which ethical social action can possibly take place without becoming legal infringement in the process. Within this widest scope for possibly ethical actions, specific ethical conceptions then seek to inform and advise actors as to which among the many possible ways to live within the sphere of the legal are also morally desirable and laudable in addition to merely not being acts of aggression in the property-theory sense.

Original version appeared 12 March 2014 at konradsgraf.com.