PROPERTY, CAUSALITY, AND LIABILITY HANS…

PROPERTY, CAUSALITY,                      AND      LIABILITY

HANS-HERMANN HOPPE

                                          I



W             herever there is scarcity of resources in relation to human
              demand, the possibility of conflict arises. The solution to such
              conflict is the assignment of private property rights--rights of
exclusive control. All scarce resources must be owned privately in order to
avoid otherwise inescapable conflicts. However, while the assignment of pri-
vate property rights makes conflict-free interaction possible, it does not assure
it. The possibility of property rights violations exists, and if there are viola-
tions, then there must be rights of self-defense and punishment as well as lia-
bility on the part of a wrongdoer (Hoppe 1987 and 1993).
     All this holds true regardless of how and to whom such rights are assigned
and who accordingly is or is not considered aggressor or victim in any given
case.
     We still remain in the realm of "positive" legal analysis when we consider
what might be called a praxeological requirement of any system of assigning
property rights. In order to make conflict-free interaction possible, every such
system must take into account the fact that man does and must act. In other
words, it must be an "operational" system. To accomplish this, based on the
system adopted, human actors must be able to determine ex ante, at any
moment in time, what they are and are not permitted to do. In order to deter-
mine this, there need be some "objective" borders, signs, and indicators of
ownership and property as well as of wrongful invasion of said ownership and
property. Similarly, when considering a case ex post, judges must have "objec-
tive" criteria of property and aggression to make a determination for or
against a plaintiff.




HANS-HERMANN HOPPE is professor of economics at the University of Nevada, Las Vegas.

THE QUARTERLY JOURNAL OF AUSTRIAN ECONOMICS VOL. 7, NO. 4 (WINTER 2004): 87­95

                                         87
88       THE QUARTERLY JOURNAL OF AUSTRIAN ECONOMICS VOL. 7, NO. 4 (WINTER 2004)


                                               II

In light of the technical requirements that every property rights system must
meet, I will turn to an analysis of a specific--and explicitly normative--pro-
posal of defining private property and property rights violations: the Lockean-
Rothbardian solution.
    In this intellectual tradition, property is defined as tangible, physical
objects which have been "visibly" lifted out of the state of nature of un-owned
goods through acts of appropriation and production. Through mixing one's
labor with specific resources, objectively ascertainable borders of property are
established and specific objects connected to particular individuals. There are
indicators of owned (as compared to unowned) objects and of who owns them
(and who does not), for everyone to "read." Moreover, the theory fulfills per-
fectly the requirement of being operational in that it traces all present prop-
erty back to acts of "original appropriation" (up until which time there had
only been "nature" or "unowned" resources). Based on this theory, man could
indeed have acted from the beginning of time. (In distinct contrast, any the-
ory that makes the assignment of property rights dependent on a "contract"
or agreement or on State-declared law [legislation] does not allow man to act
from the beginning on, but only after the conclusion of said contract or the
arrival of the State. Accordingly, any such theory must be regarded as "tech-
nically" deficient.)
    However, here it is not so much the positive definition of property as the
complementary negative definition of punishable offense that is of interest.
Based on the fundamental stricture that just as all property is private so all
crime must be private (committed by specific individuals against specific vic-
tims), Rothbard has offered the following "strict liability theory" encompass-
ing both criminal and tort law.1 In every criminal or tort case,
        [e]vidence must be probative in demonstrating a strict causal chain of acts
        of invasion of person or property. Evidence must be constructed to demon-
        strate that aggressor A in fact initiated an overt physical act invading the
        person or property of victim B. (Rothbard 1997, p. 137)

        What the plaintiff must prove, then, beyond a reasonable doubt is a strict
        causal connection between the defendant and his aggression against the
        plaintiff. He must prove, in short, that A actually "caused" an invasion of
        the person or property of B. . . . To establish guilt and liability, strict
        causality of aggression leading to harm must meet the rigid test of proof
        beyond a reasonable doubt. Hunch, conjecture, plausibility, even mere
        probability are not enough. . . . Statistical correlation . . . cannot establish
        causation. (Rothbard 1997, pp. 140­41)



     1Currently in the U.S., in criminal cases proof beyond a reasonable doubt is required.
In contrast, in tort cases it is sufficient to prove that something is more probable than not
(preponderance of evidence).
PROPERTY, CAUSALITY, AND LIABILITY                                                       89


     One important aspect of this definition: the necessity of establishing cau-
sation, based on "individualized evidence" rather than mere probability (or
preponderance of evidence) based on "statistical" evidence is accepted. This
not withstanding, Rothbard's proposal must be criticized as overly "objec-
tivistic," for it ignores important "subjective" conditions which must be com-
bined with objective indicators to determine liability. "Overly," because Roth-
bard's objectivism is not warranted by the nature of things nor is it in accord
with his own definition of property and original appropriation which con-
tains an important subjective element as well: appropriation implies intent.
(Not every berry picking counts as an appropriation of the berry bush rather
than merely the berry, and not every detour off the beaten path counts as
homesteading, for instance. [Rothbard] 1998.)
     In contrast, here it is argued that not all physical invasions imply liability
and, more importantly, that some actions are liable even if no overt physical
invasion occurs. In this argument Adolf Reinach's illuminating analysis
regarding the concept of causality in (Continental European) criminal law will
be valuable (Reinach 1989).

                                             III

For Rothbard, it appears guilt or fault is established by proof of causation of
harm. Reinach, on the other hand, emphasizes that causation and fault are
independent elements, and both must be present in order to impose liability.
Thus, he writes:
       In the case of a man's death, it is not sufficient that the death resulted from
       the action of an accountable (sane) person; as an additional requirement
       of a punishable offense, intent and deliberation (premeditation) or intent
       without deliberation (negligence) or, as we can summarily say, fault must
       be present as well. Causation of success and fault are requirements of pun-
       ishment.--Fault must always be found.2

    However, faultless causation, which remains free of punishment, exists
also.
    Consider the following examples of harm-causation which do not imply
liability due to a lack of fault. A drives on the road. B jumps from behind a




    2(Reinach 1989, p. 8).

        Liegt der Tod eines Menschen vor, so genügt es nicht, dass der Erfolg
        durch die Handlung eines Zurechnungsfähigen herbeigeführt wurde,
        sondern es muss als weitere Strafvoraussetzung Vorsatz und Überlegung
        bzw. Vorsatz ohne Überlegung bzw. Fahrlässigkeit oder, wie wir
        umfassend sagen können, Schuld hinzutreten. Strafvoraussetzung ist stets
        Verursachung des Erfolgs und Schuld.--Schuld ist immer erforderlich.
90       THE QUARTERLY JOURNAL OF AUSTRIAN ECONOMICS VOL. 7, NO. 4 (WINTER 2004)


tree onto the road and is killed. A has caused B's death. Should A be held
liable or should he go free? A invites B into his house. The house is struck by
lightning, and B is injured. A (and his property) has caused B's injury, for
without A's invitation B would have been elsewhere. Is A (or his insurer) liable
to B or must B (or his insurer) bear the costs? A's tree, struck by lightning, falls
onto B's property, injuring B. Is A (or his insurer) liable to B or must B (or his
insurer) bear the costs? A and B go hunting together on B's (or A's) hunting
ground. They approach a group of deer from opposite sides and open fire at
the same time. A's stray bullet injures B. Is A liable to B or must B assume this
risk and the associated costs?
    Rothbard would have likely agreed that A is not liable in these cases, and
he would have pointed out that he had covered this under the heading of the
"proper assumption of risk." Life involves an inescapable element of risk. It is
incumbent on each individual to learn how to live with such risk and to insure
himself against it. However, this implies admitting that the narrow causality
criterion is inadequate. What needs to be added to Rothbard's criterion would
seem to be this: No one is liable for "accidents" involving his person and prop-
erty. Instead, the risk of accidents and the insurance against them must be
assumed individually (by each person and property owner for himself). Peo-
ple can be held liable only for their actions, whether intentional or negligent
(but not for accidents involving them). Actions, however, involve both "objec-
tive" (external) and "subjective" (internal) elements. Hence, the exclusive
inspection of physical events can never be considered sufficient in determin-
ing liability (there must be fault, too, and one can only speak of fault if an
event is caused by an action).

                                               IV

Now consider Reinach's definition of action-causality. An action of legal
(penal) importance
        is an event that cannot be cancelled without also canceling the effect, inso-
        far as it is of legal importance.3 . . . "Cause" of an event . . . is called among
        other things that condition which must be added to one element of a con-
        ceptual whole, so that in place of its second component the event can be
        conceived of as having occurred.4 . . . To cause an event means to activate a
        condition of success; to intentionally cause an event means to activate a con-
        dition that brings about the success. . . . To intentionally cause something


     3Ibid., p. 29: Eine strafrechtlich relevante Handlung "muss etwas sein, das nicht hin-
wegfallen kann, ohne dass auch der Erfolg, soweit er rechtlich in Betracht kommt, hin-
wegfallen müsste."
    4Ibid., p. 39: "`Ursache' eines Erfolges . . . nennt man unter anderem diejenige Bedin-
gung, die zu dem einen Gliede eines gedachten Zusammen hinzugedacht werden muss,
damit an Stelle des zweiten Gliedes der betreffende Erfolg als eintretend gedacht werden
könne."
PROPERTY, CAUSALITY, AND LIABILITY                                                           91


       thus means to activate a condition of success, willing that this condition--of
       course in conjunction with others--leads to the success.5 . . . The willing thereby
       must be conscious that he can contribute to the willed success . . . [and] that
       success resulting from his "contribution" and other factors known to him
       is possible.6 . . . His responsibility for negligent behavior is similar. In this
       case the success is not desired; but I could and should have avoided it.
       Insofar as it is still something whose occurrence depended on me: it, too,
       in a special way is "mine."7

    In light of Reinach's definitions, we return to Rothbard's causality crite-
rion. While his criterion is on the one hand too wide in including accidental
invasions among punishable offenses, on the other hand it appears too nar-
row in determining liability.
    A few examples, taken from Reinach and slightly modified, illustrate the
point.
    A, B's superior, sends B into the woods, hoping that B will be struck by
lightning. His hopes are fulfilled.
    Has A caused B's death or injury? Should A be liable? With regard to cau-
sation, Reinach would answer yes: without A's authorized order to B, B would
not have been killed. However, Reinach would deny that A is liable, not
because there is no causality, but because there is no intent or negligence on
A's part (there is just hope). Rothbard also would hold A not liable, not
because of lack of intent but because of lack of causality (verbal orders pre-
sumably do not count as causes, for they are not "physical" causes).
    Now let us change the scenario: A is able to calculate exactly when a par-
ticular tree will be hit by lightning. He sends B to this tree, and B is indeed hit.
    Reinach would find causality here in the same way as in the first case.
What makes the two cases different and leads to liability in the second, is
intent understood as "willing with the objectively grounded consciousness of
certitude."8 In the second case, A is liable because he caused the event with


    5Ibid., p. 30:

        Einen Erfolg verursachen heisst, durch eine Handlung eine Bedingung
        des Erfolges setzen; ihn vorsätzlich verursachen heisst, durch eine Hand-
        lung eine Bedingung setzen, damit sie den Erfolg herbeiführe. . . . Etwas
        vorsätzlich verursachen heisst demnach: durch eine Handlung eine
        Bedingung des Erfolges setzen, wollend, dass diese Bedingung--natürlich
        im Vereine mit anderen--den Erfolg herbeiführe.
      6Ibid., p. 31: "Der Wollende muss (dabei) das Bewusstsein haben, dass er zu dem
gewollten Erfolg etwas beitragen kann . . . (und) dass der Eintritt des Erfolges aus seinem
`Beitrag' und den übrigen ihm bekannten Faktoren möglich ist."
      7Ibid., p. 42: "Ähnlich verhält es sich mit der Verantwortung für fahrlässiges Vorge-
hen. Hier ist der Erfolg zwar nicht von mir gewollt; aber ich hätte ihn vermeiden können
und sollen. Insofern ist er doch etwas, dessen Dasein von mir abhing: auch er ist in beson-
derem Grade `mein.'"
     8"Wollen mit dem objektiv geforderten Bewusstsein der Gewissheit."
92     THE QUARTERLY JOURNAL OF AUSTRIAN ECONOMICS VOL. 7, NO. 4 (WINTER 2004)


the objectively justified belief that his action, in cooperation with other fac-
tors, would lead to the desired result. In contrast, according to Rothbard's cri-
terion no causation exists in the second case just as none existed in the first
(the external-phenomenal sequence of events in both cases is in fact the
same). Hence, Rothbard would have to let A go free in the second case just as
in the first.
     How is this possible? Consider another example. A, B's employer, orders
B to come directly to him, knowing that half-way there is a concealed trap. B
walks into the trap and is injured. Reinach would find A liable. Rothbard
would let him go, because there is no "overt physical invasion" initiated by A.
A merely says something (which in itself is clearly a noninvasive act) to B; and
then "nature" takes its course with no further interference on A's part. That
is, entrapment, as an indirectly and by in itself noninvasive means effected
physical harm, would have to remain free of punishment.
     This does not just stand in opposition to our moral intuition. More impor-
tantly, the exclusion of indirectly caused physical harm from the class of pun-
ishable offenses has no analogue in the positive theory of property and origi-
nal appropriation. We have no trouble, for instance, conceiving of an
"indirect" act of appropriation. A, B's boss, orders B to clear a piece of previ-
ously unowned land and drill for oil. B finds oil. Thereby A, not B, becomes
the owner of the oil (although A is only the indirect cause of the act of appro-
priation). Accordingly, if A orders B to drill for oil, expecting that instead of
finding oil B will fall into a trap at the given location, then A should be held
responsible for this event as well. If not, why not?
     Consider this sequence of cases: A wants B dead and tries to accomplish
this through daily prayer. B indeed dies.
     In this case neither Reinach nor Rothbard would find liability and pre-
sumably for the same reason. No causality exists (only coincidence) and
hence there is no liability on A's part.
     Now change the scenario: A prays for B's death. B happens to see and hear
this and, being superstitious and of extremely delicate physical disposition,
dies of fear.
     In this case, too, Reinach and Rothbard reach the same verdict, that A is
not liable, but they do so for different reasons. Reinach would find that causal-
ity is given in the second case. B dies because A has prayed for his death.
What is missing and thus exculpates A is intent (or negligence) with regard to
the outcome. A wants to kill B by means of praying, which is simply and objec-
tively ineffective as far as the outcome is concerned. A undertakes no other
means than praying. B's death is the result of a causal process that is inciden-
tal (accidental) to A's actions. That is why A must go free. Rothbard, on the
other hand, would let A go because causality is absent. A has performed no
action that can be construed as being invasive of B's person or property.
     Consider a second change in the scenario: A prays for B's death. He knows
of B's superstition and weak physical condition, and he informs B of his
attempt. B dies out of fear.
PROPERTY, CAUSALITY, AND LIABILITY                                             93


     Reinach would hold A liable in this case, whereas Rothbard would not. For
Reinach in this case causality exists in precisely the same way as in the first.
And indeed, phenomenally--as far as the outward appearance of things is con-
cerned--the two cases are essentially the same. The only difference is A's
intentional saying to B what B had discovered accidentally in the first sce-
nario. Liability, according to Reinach, results from the presence of intent or
negligence. In the second case, in telling B, A acts, whether intentionally or
negligently, to bring about B's death. (Reinach would let A go only if A had not
known anything about B's medical condition. In that case, telling B might be
insensitive or cruel. However, while the causal processes involved are exactly
the same as under the previous scenario: whether A knows or does not know
about B's condition, B dies, A would nonetheless go free because neither
intent nor negligence with regard to the outcome exists.) Rothbard, also con-
sistent, would find that just as in the first so in the second case no causation
exists. There is no overt physical invasion of B by A. A's praying did not cause
the death, and informing B in itself did not involve any physical invasion.
Hence, A should go completely free. (Based on his causality criterion Roth-
bard would make no distinction between A knowing or not knowing about B's
condition. A is not liable in any case.)
     That A should not be held liable in any way, shape or form is not intu-
itively convincing. Why? What if A could in fact pray people dead, and B died
as a result of his praying? There is no physical-causal invasion, yet A has killed
B. Should A still go free? Should he be allowed to pray dead whomsoever he
wishes dead? More importantly and as indicated before, the exclusive empha-
sis on direct physical invasion has no analogue in the theory of appropriation.
We do not exclude all "indirect" acts of appropriation as invalid per se. One
can become the owner of things one never touches, i.e., without anything
faintly resembling physical causation. Why should matters be different when
it comes to aggressive rather than appropriative actions? Why should every
"indirect" (covert) aggression (causation mediated through words) be cate-
gorically excluded from possible liability? Surely, if A tells B that he wished C
were dead, and B kills C we would not hold A liable. But would we do the
same if A paid B, or if A and B were members of an organized gang of which
A were the gang's leader, and B killed C? Similarly, if Clinton or Bush ordered
their generals to kill Iraqis, the generals told their officers who told the sol-
diers, and the soldiers then killed as ordered, should only the soldiers be
liable because they have "caused" the deaths, or, as we can hardly imagine
Rothbard disagreeing should everyone from the president on down to the sol-
diers be held jointly and severally liable? But then intent matters.
     Finally, an example of failed attempt illustrates Rothbard's criterion as too
narrow. A wants to kill his wife, B. He buys deadly poison from the pharma-
cist, and regularly adds it to B's tea. However, the pharmacist has made a mis-
take. He did not sell A poison but something entirely harmless. B dies in an
unrelated car crash. The pharmacist discovers his error and the entire case
unravels. Should A be held liable or go free (B's heirs are suing A)?
94     THE QUARTERLY JOURNAL OF AUSTRIAN ECONOMICS VOL. 7, NO. 4 (WINTER 2004)


     Reinach would find A liable. There is intent (and hence fault) and there is
(failed) causality. A performs a series of actions that he believes to be and
which objectively are suited to bringing about the desired result. It is only
because of an incidental (accidental) causal event (the pharmacist's error)
that the result does not occur as desired.
     Rothbard would have to let A go, because no causality as he defines it
exists. In fact, as far as the external world is concerned, A has done no harm
to B at all. His attempt to take B's life was an all-around failure. (Rothbard
himself clearly feels uncomfortable taking this position and comments: "even
if the attempted crime created no invasion of property per se, if the attempted
battery or murder became known to the victim, the resulting creation of fear
in the victim would be prosecutable as an assault. So the attempted criminal
(or tortfeasor) could not get away unscathed") Rothbard (1997, p. 163).
     Again, the principal reason that this solution seems unsatisfactory is the
lack of an analogue in the positive theory of property and appropriation. We
do not require that an act of original appropriation (homesteading) be suc-
cessful in order to find that it has taken place and to determine ownership.
For example, A clears the underbrush from a previously unowned piece of
woodland in order to create a park. However, in doing so he accidentally
burns down all trees. A's action was unsuccessful. This is not the outcome he
wanted. Is he nonetheless the owner of the burned forest? It seems so. How-
ever, if there are unsuccessful attempts of appropriation which count nonethe-
less as acts of appropriation, why should there not also be unsuccessful
attempts of aggression which nonetheless count as aggression?

                                       V

Clearly, while "objective" (external, observable) criteria must play an impor-
tant role in the determination of ownership and aggression, such criteria are
not sufficient. In particular, defining aggression "objectivistically" as "overt
physical invasion" appears deficient because it excludes entrapment, incite-
ment and failed attempts, for instance. Both the establishment of property
rights and their violation spring from actions: acts of appropriation and
expropriation. However, in addition to a physical appearance, actions also
have an internal, subjective aspect. This aspect cannot be observed by our
sense organs. Instead, it must be ascertained by means of understanding (ver-
stehen). The task of the judge cannot--by the nature of things--be reduced to
a simple decision rule based on a quasi-mechanical model of causation.
Judges must observe the facts and understand the actors and actions involved
in order to determine fault and liability.
PROPERTY, CAUSALITY, AND LIABILITY                                                     95


                                      REFERENCES

Hoppe, Hans-Hermann. 1993. The Economics and Ethics of Private Property. Boston:
   Kluwer.
------. 1987. A Theory of Socialism and Capitalism. Boston: Kluwer.
Reinach, Adolf. 1989."Über den Ursachenbegriff im geltenden Strafrecht." In Reinach,
    Sämtliche Werke, Vol. I. München: Philosophia.
Rothbard, Murray N. 1998. The Ethics of Liberty. New York: New York University Press.
------. 1997. "Law, Property Rights, and Air Pollution." In Rothbard, The Logic of Action,
      Vol. II. Cheltenham, U.K.: Edward Elgar.