Political philosophy — the libertarian philosophy included — can take you only so far. The libertarian philosophy provides grounds for condemning aggression, that is, the initiation of force, and along with some supplemental considerations, it identifies in the abstract what constitutes aggression, victimhood, and self-defense. But the philosophy can't identify the aggressor and victim in particular cases; relevant empirical information is required. Murray Rothbard wrote in For A New Liberty:
If, for example, we see X seizing a watch in the possession of Y we cannot automatically assume that X is aggressing against Y's right of property in the watch; for may not X have been the original, "true" owner of the watch who can therefore be said to be repossessing his own legitimate property? In order to decide, we need a theory of justice in property, a theory that will tell us whether X or Y or indeed someone else is the legitimate owner.
And we cannot apply the theory of justice without empirical information. Between X and Y, who first had legitimate possession of the watch and how was possession procured? No ethical or political theory can answer those empirical questions, yet they are critical to applying the theory in order to determine who was the aggressor and who was the victim.
The same would be true if we observed an unarmed person shot dead in the street and another person nearby holding a smoking gun. To morally judge the situation, we would need more information than that provided by what we could see when first coming on the scene. That would be true even if the man with the gun is a white member of a police force — admittedly, a complicating factor considering what the police spend most of their time doing: enforcing rights-violating legislative decrees — and the dead person is a young black man who had no weapon.
I point out what seems to me obvious only because in the Ferguson, Mo., shooting, some people (libertarians among them) seem tempted to let their ideology do work it is not cut out to do. For example, when I asked on Facebook if anyone had seen a report on the shooter Darren Wilson's height and weight (Michael Brown's stats, six-feet-four, 292 pounds, have been widely reported), one libertarian responded (with sarcasm, I presume), "I'm a bit fuzzy on what the height and weight loophole in the NAP [nonaggression principle] is."
Of course there is no loophole. But that's irrelevant because, again, the NAP — or what I call the nonaggression obligation — cannot rule out a priori that the deceased may have begun the altercation with an act of aggression and that the shooting was an act of self-defense. We need facts to establish any reasonable conclusion, and without them, we are adrift. (Facts, of course, can be hard to come by. Eyewitness testimony is notoriously unreliable — and not only because people make up stuff. When suddenly subjected to a traumatic event, one's powers of observation can be less than keen. In college, this was vividly demonstrated in a journalism class with the staging of a fight between the teacher and a student. The eyewitnesses' news stories, written immediately after the incident, varied widely.)
All I'm saying here is that even considering the pervasive racism in our society, the well-documented culture of police abuse, and the enforcement of legislation that violates individual rights — it is still possible, even if unlikely, for a smaller white cop (possibly with bad intent) to shoot an unarmed bigger, heavier black 18-year-old — who had just committed a strong-armed robbery at a convenience store — in self-defense. I don't know enough to say that this is what happened, but I don't think anyone else can be sure things did not happen that way. There are conflicting eyewitness accounts, and the cable-news presentation of those eyewitnesses may not have been complete. To be sure, if legitimate self-defense might have taken place that day in Ferguson, it is also possible that Wilson initiated the altercation by giving arbitrary orders to Brown (as police officers often do to black youth) and fired his gun unnecessarily multiple times, and that Brown justifiably rushed him in self-defense. We must await the facts.
I have no intention of diminishing the systemic threat that black people and members of other minorities face from the police and other authorities every day. The so-called wars on drugs and guns, and the other decrees against victimless acts, provide the police ample scope for persecution and may well attract abusive and racist individuals to law-enforcement jobs. The experience of routine abuse plants a reasonable fear and suspicion in the targeted communities. But unless that culture of abuse justifies the cold-blooded killing of all police officers, even when they are off duty, I don't see how it can automatically tell us who is the aggressor and who is the nonaggressor in any particular incident independent of the facts. I think we have to draw a distinction between a potential threat — which all police represent, to some more than others — and an imminent threat.
Moreover, whatever happened between Wilson and Brown, it cannot justify the military-style reaction of the police and other government personnel in the aftermath. Pointing weapons at and verbally abusing peaceful demonstrators is intolerable. Tear-gassing crowds is outrageous. Curfews treat innocent people like criminal suspects. It's telling that while demonstrators were being manhandled, the police stood by while others robbed stores.
What should happen now in Ferguson and all places where shootings by the police have occurred? In the current context, it is imperative that anytime a police officer shoots someone, a public adversarial proceeding should be held where all the evidence can be presented. It could be a full-blown trial or a hearing to determine if a trial is warranted. But objectivity and transparency must be priorities. The public must see that the police officer is being judged without favor. Not even the hint of a proceeding rigged in favor of the police must be permitted. If this requires an independent investigator or prosecutor, so be it. Here, indeed, is a matter that requires heightened scrutiny.
In the longer term, the way policing is done must be rethought. I can't see how under the current system the nature of the police as an occupying army can be changed. This is especially true where minority communities are concerned. Radical solutions are needed.
People rightly decry the obnoxious militarization of even small-town police departments, but the problem is deeper than that. Police forces abused people — particularly black people — long before the Pentagon started giving cities and towns war materiel. Remember those scenes of dogs and firehoses being turned on peaceful civil-rights marchers? A billy club is low-tech, but it can do — and did — much damage. The system has long cultivated an us-versus-them attitude in the police. It's nothing new, even if the "them" has come to include more people. Police don't even regard themselves as civilians, as I believe they once did. We are the civilians. They are our watchers keeping us in line. Who doesn't do a quick self-survey when a police officer approaches? As Steppenwolf sang in its 1969 hit "Monster": "The police force is watching the people, and the people just can't understand."
I see potential in the approach spelled out by one of my favorite libertarians, Karl Hess, who wrote, also in 1969:
Libertarianism is a people's movement and a liberation movement. It seeks the sort of open, non-coercive society in which the people, the living, free, distinct people may voluntarily associate, dis-associate, and, as they see fit, participate in the decisions affecting their lives. This means a truly free market in everything from ideas to idiosyncrasies. It means people free collectively to organize the resources of their immediate community or individualistically to organize them; it means the freedom to have a community-based and supported judiciary where wanted, none where not, or private arbitration services where that is seen as most desirable. The same with police. The same with schools, hospitals, factories, farms, laboratories, parks, and pensions. Liberty means the right to shape your own institutions.
We have to do something — soon.
This article originally appeared at the Future of Freedom Foundation.