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Law, Property Rights, andAir PollutionBy Murray N. Rothbard
 
Originally published in the
Cato Journal
2, No. 1 (Spring1982): pp. 55-99.Reprinted in
The Logic of Action Two
, Cheltenham, UK:Edward Elgar. (1997) pp. 121-170.Reprinted by the Ludwig von Mises Institute, © 2002.Pagination is retained from
The Logic of Action Two
pp. 121-170. (1997) ISBN 1 85898570 6
 
 
 
6
Law, Property Rights, and Air Pollution 
∗∗
 
Law as a Normative Discipline
Law is a set of commands; the principles of tort or criminal law,which we shall be dealing with, are negative commands orprohibitions, on the order of “thou shalt not” do actions, X, Y, or Z.
1
 In short, certain actions are considered wrong to such a degree that itis considered appropriate to use the sanctions of violence (since law isthe social embodiment of violence) to combat, defend against, andpunish the transgressors.There are many actions against which it is not consideredappropriate to use violence, individual or organized. Mere lying (thatis, where contracts to transfer property titles are not broken),treachery, base ingratitude, being nasty to one's friends or associates,or not showing up for appointments, are generally considered wrong,but few think of using violence to enjoin or combat them. Othersanctions-such as refusing to see the person or have dealings withhim, putting him in Coventry, and so on, may be used by individualsor groups, but using the violence of the law to prohibit such actions isconsidered excessive and inappropriate.
∗
 
[Reprinted from
Cato Journal
2, no. 1 (Spring 1982): 55-99.]
 
1
 
Legal principles setting down certain prohibited actions as torts or crimes are to bedistinguished from statutes or administrative edicts that lay down positive demands,such as “thou shalt pay X amount of taxes” or “thou shalt report for induction on suchand such a date.” In a sense, of course,
all
commands can be phrased in such a way asto appear negative, such as “thou shalt not refuse to pay X amount of taxes,” or “thoushalt not disobey the order to appear for induction.” Why such rephrasing would beinappropriate will be discussed below. See below also for a discussion of 
“torta” vis-a-vis
“crimes.”
 
 
122 Murray N. Rothbard 
If ethics is a normative discipline that identifies and classifiescertain sets of actions as good or evil, right or wrong, then tort orcriminal law is a subset of ethics identifying certain actions asappropriate for using violence against them. The law says that actionX should be illegal, and therefore
should 
be combated by the violenceof the law. The law is a set of “ought” or normative propositions.Many writers and jurists have claimed the law is a value-free,“positive” discipline. Of course it is possible simply to list, classifyand analyze existing law without going further into saying what thelaw should or should not be.
2
But that sort of jurist is not fulfilling hisessential task. Since the law is ultimately a set of normativecommands, the true jurist or legal philosopher has not completed histask until he sets forth what the law should be, difficult though thatmight be. If he does not, then he necessarily abdicates his task infavor of individuals or groups untrained in legal principles, who maylay down their commands by sheer fiat and arbitrary caprice.Thus, the Austinian jurists proclaim that the king, or sovereign, issupposed to lay down the law, and the law is purely a set of commands emanating from his will. But then the question arises: Onwhat principles does or should the king operate?
3
Is it ever possible tosay that the king is issuing a “bad” or “improper” decree? Once the jurist admits that, he is going beyond arbitrary will to begin to frame aset of normative principles that should be guiding the sovereign. Andthen he is back to normative law.Modern variants of positive legal theory state that the law shouldbe what the legislators say it is. But what principles are to guide thelegislators? And if we say that the legislators should be thespokesmen for their constituents, then we simply push the problemone step back, and ask: What principles are supposed to guide thevoters?
2
 
Ronald Dworkin, however, has pointed out that even positive legal analysisnecessarily involves moral questions and moral standards. Dworkin,
Taking RightsSeriously
(Cambridge, Mass.: Harvard University Press, 1977), chaps. 2, 3, 12, 13.Also see Charles Fried, “The Law of Change: The Cunning of Reason in Moral andLegal History,”
 Journal of Legal Studies
(March 1980): 340.
 
3
 
The Austinians, of course, are also smuggling in a normative axiom into theirpositive theory: The law should be what the king says it is. This axiom is unanalyzedand ungrounded in any set of ethical principles.
 
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