“In primitive societies religion, morals, law, customs, [and] manners, exist as an undifferentiated whole. The boundaries between them are hazy and ill-defined. Their respective provinces are distinguished only gradually.”

—Henry Hazlitt, The Foundations of Morality ([1964] 2010, 62)

I recently came across an interesting piece by Adam Knott from last year, “The dawning of a realization,” in which he discusses a theme I brought out in Action-Based Jurisprudence (2011) regarding the need to broaden the application of praxeology beyond economics. This includes the analysis of communicative action from a praxeological standpoint. The latter is something that I picked up mainly from Hoppe and then also Kinsella’s more specific applications to various legal topics. It is Hoppe, through his breakthrough synthesis of praxeology and the communicative ethics tradition, who has provided the puzzle piece needed to reintegrate Misesian and Rothbardian elements that had seemed to drift in somewhat different directions, particularly when it came to talk of “natural law.”

Economists, including Mises, differentiate economics from both ethical and legal fields as totally separate from their own. In a Misesian context, this also set up a vision of economics (and praxeology) on one side, and all those other ethical/legal issues to be handled somewhere over in a different building of the university. The use of the word “ethics” to describe reasoning in both Rothbard’s and Hoppe’s works has contributed to confusion of field definitions. Substantial portions of their discussions that are labelled with the word “ethics” are in fact almost entirely about property theory, and property theory is the foundation of legal theory, rather than ethical theory per se.

The improved disambiguation of legal and ethical fields is one of my central themes in developing the action-based jurisprudence approach. Another is that a key foundation of legal theory is to be found in the praxeological treatment of communicative acts such as claiming and consenting. The concepts of theft and gift are differentiated only by the presence or absence of consent to transfer. Including the counterfactual-logical treatment of communicative action helps place legal theory right next to economics as a fundamentally praxeology-based (“action-based”) discipline. It puts (action-based) legal theory and (action-based) economic theory much closer to one another than has been generally understood. At the same time, both are still distinctly across the road from the ethical-theory building, in which a considerably wider scope of matters can be addressed using more varied methods.

Conflation of ethical and legal realms—with variations as to exactly how they are conflated—may well also underpin several contemporary insider libertarian controversies. At one extreme, the full field of ethics proper is neglected or left to one side by being reduced to a legalistic minimum (“as long as it’s not a rights violation, one is after all “free” to be offensive,” which is also part of the unfortunate, pop-culture, straw-man view of libertarians in general). At the other extreme, certain ethical goals can be imported as allegedly part of libertarianism itself, resulting in various degrees of marginally reformed left liberalism.

The chronic social disease known as politics is characterized precisely by the use of legalistic methods—rather than say, persuasion, education, or private boycotting—to enforce some allegedly moral actions or non-actions on recalcitrant others. This starts with theocracies of all kinds and leads up to the modern mass-meddling of democratic socialism. The complete conflation of legal and ethical realms is called totalitarianism. Any degree of conflation between legal and ethical realms is part of the big-picture problem, with the solution being improved disambiguation. An objective legality separable from any particular vision of “the good” is central to the functioning of civilization. However, reducing visions of “the good” to only a legalistic least common denominator is also not much of a vision of the good, and the idea that the latter is what libertarians do is cause for others to summarily dismiss the whole approach as amoral. There is something correct in that, but not what they think.

When viewed against this backdrop, the central positive impulse of libertarianism is indeed to define a legalistic least common denominator. Yet this only defines the minimum boundaries within which all manner of “ethical” (or not) action can take place. It defines the minimum framework within which any justifiably ethical action must fall. The legalistic minimum forms a veto-style test marker for whether an action can possibly be ethically justified under any conceivably justifiable ethical system. Within the scope of conceivably justifiable ethical systems, there is then a very large scope of possibilities, namely the entire realm of both autonomous and mutually consensual action. This forms a hard logical check on potential ethical-system excesses, foremost those embodied in the entire spectrum of (non-libertarian) “political” ideologies, which promote the abuse of legalistic forms and methods to enforce particular visions of the good on others against their will—itself defensible neither legally nor ethically.

From an ethical point of view and not a legal one, any and all such justifiable ethical action can and possibly should still take place. The legal least common denominator only marks the ethical floor, not the ethical ceiling. Both legal and ethical perspectives are needed, but each can only be optimally implemented when not conflated with the other. Conflating them, which is usually done, leads to serious problems, which we see all around us. The proper respective realms of law and ethics must be better distinguished, each with its own distinct foundations, methods, roles, and concerns. Neither formal legal-theory nor ethical considerations and values should be dismissed or underestimated. Both should be embraced. However, conflating the two improves neither, and tends to destroy both.

See also my, “Another layer of distinction behind Tucker’s humanitarians and brutalists” (1 August 2014).

The material I have released in the area of action-based jurisprudence so far is collected here.