As AE shows, since norms must be objectively derived from the praxeological grundnorm of peaceful conflict resolution, arbitrary particularistic moral distinctions are unattainable positions. The intuition of slavery norms being inconsistent with the goal of peaceful conflict resolution is indeed grounded in the nature of discourse.

Normative distinctions based on skin-color, height or sexual preference are trivially arbitrary, as people of any skin-color, height or sexual preference can deny them in argument with no implied contradiction. Such a distinction has nothing to do with their ability to respect the rights of others, and implied in that, to resolve conflicts in discourse. They are fully capable moral agents.

However, what about the removal of moral distinctions, that is, broadening the category of moral agents to include animals, for instance? It can be shown that this is not the removal of a moral categorical distinction, but  in fact the introduction of one. It is because animals are cognitively “blind” to the notion of rights and the rights of others; they cannot then be logically held accountable for committing rights violations any more than a blind man can logically be punished for bumping into someone, after taking all possible precautions.  Therefore, to claim that the rights of animals should be respected by man is not to claim that animals are equal to man, but rather that animals are superior to man. Man will be punished for spitting in the face of a lama, but the lama will not be punished for spitting at his*. (*Again, to argue the lama should be punished is a clear reductio ad-absurdum)

Abortions

Abortion poses a different yet very much related question.

As far as I can see, every approach which recognizes a two-celled fetus to be a rights entitled moral agent must also completely appose abortions. The fetus was put in its current hazardous situation inside the mother’s womb by the direct actions of its parents, and so they have a moral responsibility not to kill him. Such approaches, however, are more reminiscent of the old unfounded “natural rights” approach to libertarian ethics, and are in my view inconsistent with the presuppositions of argumentation.

A fetus has been claimed to be comparable to a sleeping man. The fetus, like a sleeping man will in the future become an actor, “waking up”. By this analogy of course a sleeping man does not lose ownership of his body during sleep. This is of nothing special; as a person similarly does not lose ownership of his house while he’s away. Ownership claims must be grounded in past events, which can be known, not in future events. The future is inherently uncertain. A valid AE ownership claim must of course also be traceable to a moral agent. So, given that a fetus will most likely become a moral agent, can he be considered a sleeping man?

Since a fetus lacks the cognitive ability to respect rights, he is most certainly not currently a moral agent. However, unlike ownership over the body of a sleeping man, the body-ownership of a fetus cannot be traced to a moral agent other than his mother (and maybe father, to a lesser extent). The moral agent the fetus will presumably become, and has yet to come to existence is a late-comer with regards to the mother. Such a hypothetical moral agent never showed himself to be capable of argumentation, nor has appropriated anything. No valid rule of ownership can assign ownership to a moral agent who has yet to come into existence.

The implications of relying on nothing but cognitive ability to define moral categories, while in and of itself somewhat intuitive, can lead to some non-intuitive conclusions. The fact animals cannot logically be regarded as moral agents legalizes not only killing and eating them, but also gruesomely torturing them for no apparent reason. While such an act may be socially appalling, AE shows that it does not justify the use of violence against the torturer. Similarly the fact that a fetus is not a moral agent not only allows abortions during the entire term of pregnancy but also during the time the baby is still extremely young. This of course also includes genital mutilation also known as circumcision. While such acts are deemed discussing, they only justify the use of the powerful social sanctions a free-society will surely have in order to prevent their occurrence.

I will also note that a child does not go from having no rights to being a full moral agent in an instant. As a baby grows older and develops some cognitive ability to respect the rights of others, he also gradually gains some rights for himself. Once the child has shown he is able to fully respect the rights of others and maturely resolve disputes, he must be considered full moral agent, and has all the rights of a grownup himself.

All political systems essentially boils down to a particular idea for rules of ownership. Who should have all the guns? Who should own the means of production? Who should decide what goods a person may consume? The context of conflict resolution is therefore found at the base of all ethical discussion. This observation is what gives Argumentation Ethics its strength.

AE shows the non-aggression principle ethics to be presupposed in argumentation and therefor the only justifiable ethics. On that base we can extend, and safely expand and build a rational (libertarian) legal theory in some interesting, often non-trivial ways, relying on nothing but an apriori appeal to rationality in discourse. Let us now observe how we can use the same basic methodology used by Hoppe in AE, to examine legal situations other than simple rational conflict resolution.

Even now, that we have a rational proof that only the NAP is justified, not all people will choose rationality, and some will be criminals. This unfortunate fact poses us with two new legal problems:

  1. Self-defense.
  2. Punishment.

How then can we determine what is justified self-defense and punishment, and even prior to that- can we prove them to be justified at all?

The Hoppean approach to such a question, as Stephan Kinsella expertly shows, is to consider a hypothetical argument between an aggressor and victim. Before we do so, we must first understand the concept of Dialogical Estoppel and how it relates to the concept of a performative contradiction found in AE.

A trivial contradiction occurs in argument when one claims two contradictory propositions, such as:

  1. Yesterday I was in France.
  2. I never visited Europe.

We can only dismiss the arguer position as illogical after he had claimed both propositions. In contrast, when an arguer claims “I am dead”, we can immediately reject his position as illogical because such a claim by itself implies:

  1. The proposition maker is dead (implied by the content of the proposition).
  2. The proposition maker is alive (presupposed in the act of making the proposition).

A performative contradiction is thus an unattainable position in an argument in and of itself with no further propositions or knowledge required. A performative contradiction simply occurs when the content of the proposition (1) contradicts what is presupposed by making it (2).

We will now show that by introducing a single new piece of information we can construct a new type of contradiction called dialogical estoppel. Let the new piece of information be: “Bill cheated on his wife yesterday”(1). Of course given this information we can trivially dismiss his position if he claims “I did not cheat on my wife yesterday.” However, what if Bill makes the following broader normative claim:

  1. Claims made by fornicators should be dismissed as false. (2)

From (1) and (2) it can be deduced-

  1. “Claims made by Fornicators should be dismissed as false”- should be dismissed as false. (3)

Thus, given information about Dave’s actions, certain normative claims also imply a contradiction. Such a contradiction Stephan Kinsella terms Dialogical Estoppel, based on a similar concept in common law (In Hebrew law it is called Heshtek). Given Dave is a fornicator; Dave is estopped from claiming norm (2). Such a claim would render a Dialogical Estoppel contradiction.

Now, let’s return to the argument between the aggressor and victim. The aggressor might want to object to his punishment by claiming “Aggression against me is unjustified, because I own my body.”, and then point to AE. To claim an act is unjustified is essentially to claim such an act justifiably warrant retaliatory use of force. However, given the aggressor has himself committed an act of aggression against another person’s body, if he makes such a normative claim, he then must also accept that aggression against him is justified- in retaliation to his own actions. Therefore, an aggressor cannot object to his punishment without a dialogical estoppel contradiction. His objection, given his previous actions, simply is not logically consistent.

After the punishment has been administered the aggressor and victim are in symmetry, and so neither can be said to have a justified claim against the other. By reflecting on dialogical estoppel we can see that libertarian punishment supports a punishment proportional to the crime. One cannot claim that stealing a bubble-gum is evened by a public execution.

Find out more on Dialogical Estoppel: