For the bastions of libertarianism who uphold the validity of natural law and natural rights, it is always a matter of principle to categorically condemn violations of private property rights and infringements upon the liberty of the individual by means of state-imposed laws. Whenever state interventions become handy for aggression against other members of society, one must never fail to seize the opportunity to highlight the arbitrariness of these laws from the point of view of natural law.
Currently making the news across media platforms in Nigeria is the story of Dele Farotimi—an activist lawyer who recently published a controversial book titled Nigeria and its Criminal Justice System. Farotimi in his expositional book about corruption in the Nigerian justice system alleged that some prominent Nigerians—among them one Mr. Afe Babalola—co-opted the justice system to consolidate both their personal interests and those of their clients.
According to the Premium Times, “Mr Farotimi alleged in the book that Mr Babalola, a legal heavyweight in the top echelon of Nigeria’s legal profession, corrupted the Supreme Court to procure a fraudulent judgement in the service of his clients.” Reacting to Farotimi’s claims, the Premium Times reports that, “Mr Babalola petitioned the police in Ekiti State over his characterisation in Mr. Farotimi’s book, prompting the police to invade the author’s office in Lekki, Lagos State, on Tuesday [December 3, 2024].” Furthermore, the Punch Newspaper reports that,
On Wednesday [December 4, 2024], Farotimi was remanded in prison custody by a magistrate court in Ado-Ekiti following his arrest on a 16-count charge of criminal defamation.
Babalola has called for an urgent investigation into Farotimi’s claims, the recovery of all copies of the book and a halt to its further distribution.
Now, whether the allegations made against Babalola are true or not is not the point. What this article proposes to do is to briefly examine, from a strictly libertarian point of view, the implications of “positive law” as it pertains to liberty of individuals—most particularly the individual’s right to freedom of speech.
Natural Law vs. Positive Law
The social and legal order of a libertarian society is strictly based upon “natural law.” Natural law, as it pertains to human society, is the complex of legal principles abstracted from the nature of man with the aid of reason. On the other hand, “positive laws” are laws imposed by decrees and legislative enactments of the state. It sometimes happens that positive laws coincide with the dictates of natural law, in which case they become superfluous. Compared with the socio-legal status quo, the natural law foundation stands to highlight the radical nature of libertarianism. Rothbard puts it as follows in The Ethics of Liberty: “The natural law is, in essence, a profoundly ‘radical’ ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason.”
One way in which positive law endangers the liberty of individuals is by falsely imputing property rights to aspects of life which—seen from the point of view of natural law—are arbitrary. For instance, in regard to freedom of speech, the idea of defamation laws is premised on the false notion that the reputation of someone is his property, even though this reputation is strictly the outcome of subjective evaluation of other individuals.
Reputation exists in the mind of individuals. It is, in fact, an “intellectual property,” derived from the value judgments of specific members of the social community as distinct from the individuals for whom the reputation is formed. Recall the first axiom of private property, that every individual has ownership right to his body—this includes control over his faculties and its products thereof. It therefore follows that every individual has the liberty to form a positive or negative opinion of other individuals using his faculties. And yet this “opinion of others” belongs to him who forms the opinion.
In addition, they also have the right to publish their opinion about others in books or media platforms to which they have ownership titles, or are granted permission by those who have ownership titles. Accordingly, they also have the right to distribute their opinions about other individuals for free, or in exchange for definite quantities of other goods which they value much more. In fact, this is the case with Farotimi who publishes his opinion—in the form of allegations—about Babalola in book form and consequently exchanges it with interested readers for money prices.
Thus, defamation laws become invasions on the right to self-ownership and freedom of expression of one’s faculties via speech or the written word. Rothbard, in his book, For a New Liberty, succinctly remarks that:
It has generally been held legitimate to restrict freedom of speech if that speech has the effect of either falsely or maliciously damaging the reputation of another person. What the law of libel and slander does, in short, is to argue a “property right” of someone in his own reputation. Yet someone’s “reputation” is not and cannot be “owned” by him, since it is purely a function of the subjective feelings and attitudes held by other people.
Rothbard adds:
But since no one can ever truly “own[”] the mind and attitude of another, this means that no one can literally have a property right in his “reputation.” A person’s reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population. Hence, speech attacking someone cannot be an invasion of his property right and therefore should not be subject to restriction or legal penalty.
The political implication of a proliferation of positive laws lies in the fact that violent incursions of the state apparatus on liberty of individuals become legitimized by virtue of these laws. Positive laws sanction state restrictions in the spheres of action of citizens. In regard to defamation laws, one can easily observe how they become handy toward suppressing dissent and freedom of speech of one group in the interest of another group, maybe even for the mere fact that the latter feels offended by the utterances of the former.
A further implication of the substitution of positive law for natural law is that judicial processes become subject to the arbitrariness of individuals as opposed to clearly-defined legal categories that can be traced to natural law. This makes justice more difficult to obtain at the state’s court of law.
Natural Law as Guidepost for Reshaping Existing Positive Law
In order to bring society closer to the libertarian ideal, reformers must hold up existing positive laws against the critical light of natural law and reason. The more existing laws approximate natural law, the closer the libertarian ideal is achieved. The conscientious libertarian must uphold liberty and defend property rights from the point of view of natural law as opposed to arbitrariness of positive law.
Of course, an argument against defamation laws does not translate to a moral assent to defamation, libel, or slander. While it is immoral to spread false allegations against an individual, this does imply the necessity of violent intervention of the state via legislation. Rothbard goes on to remind us in For a New Liberty that: “the moral and the legal are, for the libertarian two very different categories.”
