J. Neil Schulman

J. Neil Schulman is winner of the Prometheus Award for his novels Alongside Night and The Rainbow Cadenza, and winner of the James Madison Award from the Second Amendment Foundation. He's the author of ten books which have won praise from libertarian authors including Milton Friedman, Walter Williams, Robert A. Heinlein, Thomas S. Szasz, and Nathaniel Branden. His latest novel is Escape From Heaven. His personal website is at http://jneil.tv/.

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Collateral Damage
and the
Libertarian Non-Aggression Principle
by J. Neil Schulman

I've been a libertarian -- an advocate of and activist for inherent individual human (and other sapient) rights -- for the last three decades. If anything distinguishes the libertarian intellectual tradition from other politico-ethical traditions, it's the idea that rights originate with the individual and not with any collective, and that any group -- religious, ethnic, or political -- only has those rights which are held by the individuals who comprise it.

This a priori premise dictates the answer to most of the conflicts of rights that arise in other traditions. Libertarians abhor the use of force to benefit one individual at the unwilling expense of another, and by corollary, likewise abhor sacrificing any innocent individual for the benefit of the collective -- again, whether that collective is religious, ethnic, or political. Libertarians, having adopted Ayn Rand’s principle of never condoning the initiation of force, more often than not define themselves by this non-aggression principle.

Nevertheless we live in a world in which the words spoken by Humphrey Bogart at the end of Casablanca seem to be the premise that everyone other than libertarians operate on -- paraphrasing: that the problems of one or two little people don't amount to a hill of beans in this crazy world.

Libertarians have spent a lot of words trying to reconcile the usages of the real world with the pure ethical abstraction of never sanctioning coercion. Doing so alienates the strict libertarian from the daily political discourse in the rest of the world as effectively as if libertarians were unworldly religious pacifists. Quakers, Amish, and many orders of monks come to mind.

Ayn Rand, unwilling to cut loose from the world as did the protagonists in her novel Atlas Shrugged, used a general ethical escape clause which she called "emergency ethics." The premise of emergency ethics as Rand used it, and adopted by many libertarians who followed, is simple. In any situation where there is no "non-deprivatory alternative" -- when there is no existing pro-survival behavior that does not deprive someone else of their rights -- one may act for survival even at the expense of others -- that is, outside the bounds of ethics. Rand justifies actions taken in self-defense, even if innocent third parties are hurt in the action. Only libertarian pacifists condemn as unethical using force against an attacker.

Allowing for any sort of collateral damage to innocent third parties, however, takes us off the map of the primary Objectivist/libertarian non-aggression principle since any use of force, even defensive force, harming innocent third parties violates the non-aggression principle, and likewise can only be justified if one is also arguing the case for the absence of a non-deprivatory alternative.

This escape clause opens up a can of worms because the absence of a non-deprivatory alternative is the common state of affairs for much of the human race at any given time, since war, terrorism, forced famine, and criminality thrive on depredation, on negative-sum games. It's common for one side -- usually those without constraints against harming the innocent -- to take loved hostages who would be harmed if force is used in response to their aggression. Libertarians are therefore left with only two alternatives: acting solely within the boundaries of one's ethical map even when the end result is annihilation of oneself and beloved others, or adopting some calculus of preferential behavior that allows for the likelihood of innocent third-party casualties in the defense of self and beloved others.

“Beloved others” can vary widely for libertarians, depending on whether one is completely individualistic in one’s affections or extends one’s affections to collective categories, such as family, nation, or even species. One’s highest values can be material, social, or even transcendental, depending on one’s worldview; but it’s hard to imagine a libertarian who would subscribe to any ethics at all if he hadn't escaped solipsism long enough to consider the existence and value of others.

The question of whether libertarianism can allow for violation of the non-aggression principle in any case at all is an abstract ethical problem when looked at here in the non-specific, but when one applies the problem to the real world where the result is awful and tragic, the answers are always poignant and devastating.

Survival is not an unconditional good, even for some committed materialists, and certainly not for that atheist who values anyone else’s survival even more than his own. There are often enough situations where self-sacrifice is the ultimate defense of one’s highest ideals. Ask the soldiers standing “between their loved homes and the war's desolation.”

But when, in his dissent to a 1949 case before the Supreme Court, Justice Robert Jackson worried, "There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact," he could have been expressing the concern of many libertarians that the non-aggression principle not become a suicide pact, either.

In my career as a libertarian writer, I have written against such private violations of the individual human spirit as murder, assault, and thievery, and such political violations of the individual human spirit as involuntary takings of private property, conscription, compulsory state-controlled education, and any attempt to tell people what sexually or chemically they may discreetly do with their own lives.

I’ve also cautioned against the death penalty, not out of any moral problem with killing vicious murderers when you’re certain they’re vicious murderers, but because I think the criminal trial system as currently constituted convicts the innocent too frequently. Accepting a certain percentage of wrongly condemned as the price one pays for executing the guilty is another form of third-party collateral damage troubling to the pure libertarian ethic.

I think three decades of writing such things establishes me as a libertarian.

Yet, I find myself having to turn to the escape clause -- the absence of non-deprivatory alternatives -- more and more often nowadays, when thinking about which side I'm on when the only choice is between the government and terrorists.

How can I fail to acknowledge that the real world presents alternatives unsatisfactory to the libertarian paradigm? It requires blinders not to recognize that there are enemies who would kill me and my ilk for no other reason than that I am an American, not to mention born Jewish. They don't see me as an individual and I can't respond to their threat as an individual. There are no commercial or otherwise private institutions that exist to stop them, nor do I see any on the horizon.

Whether targeting Al Qaeda missionaries hijacking commercial jetliners and converting them into guided missiles aimed at office buildings, or a sniper indiscriminately shooting just about anyone who gets within his cross hairs, it requires massive coordinated efforts to counter such diffuse threats. The posse becomes the entire nation, a well-regulated militia deputized, organized and dispatched by the government.

The alternative, which is placing oneself into opposition to the government opposing that threat, because all governments are by nature coercive, is -- however ethically pure -- suicidal. It is just as suicidal – and morally idiotic -- to regard all government as merely gangs of thugs. Libertarians of the anarchist stripe often enough dismiss any moral distinction between the United States federal and state governments – which arrest and imprison people for victimless crimes -- and any other foreign government, including regimes whose people have no institutionalized rights or protections whatsoever. Libertarians often enough have argued that there is no distinction between our government and the Mafia. I have, over three decades of libertarian exposition, used such rhetoric myself.

Libertarians have argued to me since 9/11 that there is no moral distinction to be found in the United States bombing of civilians in Dresden, Germany, during World War II and the destruction of the World Trade Center by Al Qaeda. Once one escapes the moral bounds of non-aggression, why make any moral distinctions at all between anyone willing to accept collateral damage to innocent third parties for their political purposes?

Could a good answer for making that distinction be that in one case the people on one side are fighting to preserve human liberty and the people on the other side are fighting to destroy it? Is not there a clear distinction between a people who founded their nation on the principle that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness” – and who have since expanded this to include just about anything with human DNA and a heartbeat – and people who consider murder and slavery fine with them just so long as you do it with pure intentions?

Yes, all government is coercive. Yes, there are thugs, maniacs, and the morally blind in all governments … just as there are in the private sector. But if I have learned anything new since I started writing as a libertarian, it’s that what is in people’s hearts -- the principles they believe -- are often more important than the institutional structures they inhabit.

There are idealists and dissidents and whistleblowers and people who look the other way within any government. There were good Nazis and good Communists – who placed human decency above their ideology -- and I’m sure one day we’ll find that there were good Al Qaeda, who wouldn’t have anything to do with blowing up our office buildings.

There are differences of principles that can distinguish between a government which is committed to preserving individual liberty and a government which regards human beings as mere means to a greater end.

A government of the United States of America, comprised of people who take seriously their oaths to preserve that constitution which contains our Bill of Rights, is both distinguishable and preferable to governments which are in fact populated mostly by greedy thugs. Libertarian anarchists – and I used to be one who did this – fail to make these crucial distinctions.

This does not mean that one must be an uncritical slave of the State. One can be a critical partisan. I favor the survival of Western Civilization. That doesn't mean that whatever the government does in defense of it is sensible. Constructive criticism is necessary, as always. I've been offering what I believe are both practical and pro-liberty suggestions on inhibiting terrorist threats since 9/11.

But, in times of emergency, one must also begin considering a calculus of innocence. When there is guaranteed to be innocent victims regardless of what one does or fails to do, how is it better to ride one's clear conscience into the destruction of all one holds dear, rather than admit that in an imperfect world, choosing the good over the perfect is the usual human dilemma? Shouldn't we instead be immensely grateful that the soup du jour we are offered is between the United States and Al Qaeda, rather than having to choose to ally with Stalin's Russia in the defeat of Hitler’s Germany, as did my parents' generation?

For me, as a lover of liberty, it's not even a hard choice. The United States, for all its flaws, is morally and politically so much better than the rest of the world that the rest of the world sees the choice in black and white. It's only a hard choice if one expects the real world to conform to one's ethical maps, rather than the maps having to conform to the real world.

Every religion tells us that it is wrong to kill the innocent. But religions all have escape clauses of their own: gods may kill the innocent all they like. These religious moral codes are set down for humans, not for gods.

Libertarians decry that governments take on the attributes of gods in regarding people as expendable resources. That, in its essence, is the whole of the libertarian critique of statism.

Outside the bounds of religious morality meant to guide human action, we meet the real world again, in which a President Truman had to decide whether not only hundreds of thousands of American lives, but hundreds of thousands of Japanese lives, would be saved if he ordered the dropping of an atomic bomb on two Japanese cities, killing tens of thousands.

In that real world a couple of days ago we met Russian commandoes who assaulted a theater and killed terrorists who had taken hundreds of people hostage, knowing that some of those innocent hostages would die in the assault. We now know that over a hundred hostages died in that rescue, certainly considerable “collateral damage.”

In that real world, we meet a President Bush who has to decide if using the military force of the United States to depose a foreign dictator who possibly has not yet attacked our shores will be more or less likely to stop terrorists from gaining access to weapons of mass destruction which they would use against us.

Libertarian ethics permits no calculus by which some individuals are to be endangered or even sacrificed outright in order that others may live.

But Presidents and generals play god in their daily lives, making such decisions, and the best of them pray that their decisions produce a better rather than a worse world -- that the ends do in fact manage at the end of the day to justify the means.

It's easy to stand on the sidelines with one's ethics intact, and jeer.

I think I'll just thank God that I don't have to make the hard calls and say to those who must: "Do the best you can and don't let acting like God go to your head."

Perhaps it is better to define libertarianism not by the non-aggression principle but by the principle that any chosen action contains the possibility of third-party damages, and the moral actor accepts personal responsibility for them. This is not so much letting the end justify the means as recognizing that no human action, even choosing inaction, is without risk of a catastrophic outcome.

This is, I admit, not a pristine libertarian position. That's because, in the world I see, this libertarian can't find one.