Arguing About Ethics: Part 1

David Hume famously argued that we cannot derive a moral ought from factual statements about what is.¹ This distinction has dominated philosophical discourse regarding ethics ever since and proceeded to, “subvert all the vulgar systems of morality.”² This basic distinction serves as the basis for the fact-value split. Is this chasm actually impassable? Of the many attempts to overcome this divide, it seems the argumentation ethics (AE) as advanced by the German philosopher Hans Herman-Hoppe may have the best odds.² In the course of his argument, Hoppe contends that in order for one to even make an argument – understood in the formal, philosophical sense of reasons or premises which lead to a conclusion – one must presuppose the Nonaggression principle (NAP) as well as private property rights. If successful, it would seem that we do indeed have a case of deriving an ought from an is, namely that reason demands one not initiate violence or coercion against another. Thus, if his argument holds, we have the case that anyone advocating anything less than peaceful interaction – or even arguing against Hoppe’s position – is caught in a self-contradiction.

By way of summary, Hoppe's argument can be laid out as follows:

1. All normative claims must be universalizable to all people.
2. No proposition can be justified apart from argumentation.
3. By engaging in argumentation, one accepts certain presuppositions:
   a. Truth is discernible by reason/argumentation.
   b. Reasons and arguments are incompatible with violence or coercion.
4. Argumentative exchange requires that those engaged have exclusive control over their mental faculties.
5. To deny one’s self-ownership is to deny one’s own control over one’s mental faculties.
6. Humans do not argue apart from their bodies.
7. Therefore human self-ownership extends to their bodies.
8. Human bodies require scarce resources in order to argue.
9. Control or ownership of resources must be justified.
10. Any ethical position for adjudicating claims to decide the use of resources must be universalizable and justified through argumentation.
11. Only the libertarian theory of rights (i.e. the NAP and homesteading principle) are consistent with the presuppositions of argumentation (3).
12. Therefore the libertarian theory of rights is the only justifiable position.

The sympathetic reader may see such a peaceful society as a heavenly ideal, but realize that even if Hoppe’s argument stands as stated, it would prohibit justice or retributive action against those who may wish to live inconsistently with reason. This, however, would be a misconstrual of Hoppean thought as he does hold that criminal justice is necessary and moreover can be justified. In response, Stephan Kinsella introduces the concept of estoppel in order to justify the lex talionis position of proportional retributive justice.⁴ Estoppel is the principle in common law which prevents one from contradicting oneself or his previous actions, whereby we may say that the person who attempts to do so is estopped. By acknowledging this principle, Kinsella argues that one may consistently justify retributive force against an aggressor with respect to the NAP because they in turn they would be estopped from objecting on the basis of their previous conduct. By way of example, Kinsella proposes a situation whereby A murders B and B’s agent C attempts to punish A. Unfortunately for A, any objection to his punishment invokes moral claims which are inconsistent with his previous actions, thus:

A cannot consistently claim that murder is wrong, for it contradicts his view that murder is not wrong, evidence by or made manifest in his previous murder. He is estopped from asserting such inconsistent claims. Therefore if C attempts to kill him, he has no grounds for objecting since he cannot now (be heard to say) that such killing by C is “wrong,” “immoral” or “improper.” And if he cannot complain if C proposed to kill him, he surely cannot complain if C merely imprisons him.

If successful, Hoppe's argument provides a powerful edifice for objective ethics. However, it is not without its criticisms, unfortunately, many of these have fallen into strawmen arguments and completely miss the mark. Regardless, there are valid critiques and some carry much more force. The question is, do any of these criticisms undermine the bulwark that Hoppe has devised? We'll save those questions for Part 2 of this series.

1. This is the famous “is-ought problem” and was outlined in Hume’s A Treatise of Human Nature, Book III, Part I, Section I, made available online through the Gutenberg Project.
2. Ibid
3. See chapter 7 of Hoppe's Theory of Socialism and Capitalism for a full discussion. Also Chapter 13 of The Ethics of Private Property
4. Kinsella, Stephan, “Punishment and Proportionality: The Estoppel Approach,” in The Journal of Libertarian Studies, Vol 12, No 1 (Spring 1996): 51-73