[From my Webnote series]

See also:

• Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 5, n. 28: “The concept of “detrimental reliance” actually involves circular reasoning, however, for reliance on performance is not “reasonable” or justifiable unless one already knows that the promise is enforceable, which begs the question.” and ch. 9, Part. I.E
• Defamation as a Type of Intellectual Property, quoting Felix Cohen, “Transcendental Nonsense and the Functional Approach,” Colum. L. Rev. 35, no. 6 (June 1935): 809–849, pp. 814–815: Regarding the justification of trademark rights: “Courts and scholars, therefore, have taken refuge in a vicious circle to which no obviously extra-legal facts can gain admittance. The current legal argument runs: One who by the ingenuity of his advertising or the quality of his product has induced consumer responsiveness to a particular name, symbol, form of packaging, etc., has thereby created a thing of value; a thing of value is property; the creator of property is entitled to protection against third parties who seek to deprive him of his property.  … The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected.”
• In a recent (Jan. 2o26) podcast discussion of ICE immigration detentions, someone claimed the feds don’t have probable cause or reasonable suspicion merely if someone looks Hispanic, but if they also look terrified, that might be an additional factor that justifies a stop or detention or something. But of course if that was the law, then this would feed back and become further justification for the terror the illegal feels when he sees an ICE officer. If he knew the law didn’t have that holding, he would not be terrified. So it’s sort of a bootstrapping or circularity example. Similarly, re the recent ICE shooting of Alex Pretti in Minneapolis, FBI Director Kash Patel said something like you can’t bring a loaded weapon to a protest. You could argue that if ICE agents will respond aggressively to firearms possession, then this actually bolsters your case that you have reason to believe you do actually need to carry a gun.
• See example from Classificationism, Legislation, Copyright: Whether speech on a license plate is private or public, by the state or not: see Lehto’s Law, Court Says You Can Say Anything You Want on Your Vanity Plate; Whateley v. Lackey, No. 25-1751 (4th Cir. July 31, 2026), available at Justia, CourtListener, and govinfo PDF. Circular because the question is whether there is a First Amendment free speech right to express oneself on a license plate, but this turns on whether it is classified by the state courts as private or public speech. But whether the license plate symbols are private or public turns on how courts decide the speech issue. The court here apparently said that it “is” private speech, and “therefore” there is a First Amendment right to say what you want–which means, to direct state functionaries to print an official state license plate with the message requested by the citizen. But if the court instead held that the license plate “is” official messaging by the state, and thus public and not private, then there would be no right violated. In other words, if the courts were to hold that the license plate is controlled completely by the state, then no one would interpret the message as by the vehicle owner. If the license plate said “Tax Slave #3899” this would not be understood to convey the message by the owner that he agrees with this. If the state permitted the owner to say what he wanted, then it would. So how it’s interpreted–as speech “of” or “by” the owner, or not–depends on the state’s license place scheme and the courts’ interpretation of the First Amendment. This whole thing is circular; legal incest, so to speak.

From Mises Blog (archived comments below):

Circular Reasoning in the Law

Archived comments:

Comments (12)

• Ohhh Henry
• I think that the attempt to use a state apparatus to codify and enforce laws must inevitably produce bad laws. Good laws are commonsensical and do not need a complicated way of explaining them. Natural law in other words. Because natural laws are commonsense it is easy for people to avoid breaking these laws, and a large and expensive apparatus for producing “justice” is unnecessary.If there is to be any room for a large and intrusive state to exist, it must find something to do other than logical, rational, commonsense things. Those things are already being done and nobody needs a state to do commonsense things for them. The state must therefore stake out and own the field of irrational and stupid laws. The bigger the state that is desired, the more new laws they need, and the more they must deviate from what is simple and rational.I believe that this explains the many problems with the law, in its state-produced form. The state writes bad laws not through any accidental circumstances or due to lack of diligence by legislators, but because it MUST write bad laws in order to exist.

• Published: May 21, 2009 4:18 PM

• Gil
• “Good laws are commonsensical and do not need a complicated way of explaining them.” – O. Henry.Further specious explanation for any and all laws? Laws are simply restrictions of one person against others. The only presumed legitimate way a person can come up with laws is due to the fact they actually own the property that they are trying to restrict others with.

• Published: May 21, 2009 7:12 PM

• Karl Fielding
• Circular reasoning? Try to put a subjectivist spin on the definition of “fair market value” in a contracts class. I think I got an “A” in blank stares.

• Published: May 21, 2009 7:51 PM

• Ben R.
• I just finished up 1L and the first example that I thought of was referencing “notions of fair play and substantial justice” to determine if a court has jurisdiction. I found this question begging-standard particularly disappointing in something as important as jurisdiction.

• Published: May 21, 2009 9:01 PM

• Magnus
• Assumption of risk (although it doesn’t much exist any more). It was basically defined as “any tort-type loss for which the law will not provide compensation.”Another of my favorites was deciding a Constitutional issue by purportedly using a “balancing test.” Balancing what exactly? It’s not a test, and not a rule at all, if you simply say that you are “weighing” the policy considerations. Maybe that “weighing” is a common political means of arriving at a rule, but a “balancing test” is not actually a rule.Here’s one that you should like, Stephen — “fair use.” The rules of copyright, such as they are, determine what’s fair.In 14th Amendment cases, one of the major factors is whether some legislation serves a “legitimate governmental interest.” Of course, what defines the parameters of supposedly legitimate governmental interests in the first place are those very rules about the limits of governmental power.Another absurdity, although not circular per se, are the decisions that say that trial judges’ rulings on certain issues will only be reversed if they constitute an “abuse of discretion,” but then go on to say that “any decision other than exactly the one we demand will be treated as an abuse of discretion.” It’s like saying you can get a car in any color so long as it’s black.The law is bullshit. Practicing in government courts is an exercise in bullshit.

• Published: May 21, 2009 9:38 PM

• Walt D.
• The great logician Kurt Godel, claimed to his friend Einstein, on the way to his citizenship interview, that the US Constitution had a logical flaw that would allow, by self-amendment, a few thousand federal and state politicians to institute a dictatorship.Note that this totally different than the SCOTUS using twisted logic to arrive at an arbitrary decision. What Godel was alluding to was based on a strict adherence to Constitution based on standard everyday usage of the English language, The following link explains Godel’s reasoning.

• Peter Suber, Part One: The Paradox of Self-Amendment, Section 1 Introduction: Logical Paradoxes in Law

• Published: May 21, 2009 10:07 PM

• P.M.Lawrence
• SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition. You have simply omitted the stuff that would clear the difficulty up.

• Published: May 22, 2009 3:51 AM

• Sasha Radeta
• I think all libertarians agree that mere promises are not enforceable. Unlike contract violation, breaking a promise does not imply any unlawful usurption of property that legally belongs to someone else (contrats are in fact exchanges of property titles). However, some libertarians miss the basic meaning of contracts (free market exchanges) — and that is far more serious issue, since enforceable contracts are synonymous to free market transactions.Often, you have libertarians who think that by obtaining limited access to someone’s property (like works of authorship), you magically get the property tile over that good in its enirety. Strangely, copyright violators claim that contracts are not absolute – they just need “terms of use” agreement to gain access to another person’s property… and then they engage in a limitless use, regardless of rightful owner’s disapproval.It’s really not a secret that state is really guided by arbitrary decree, rather than any real justification for the policy or decision. Unfortunatelly, the same often goes for many of those who oppose the state, either from right or left.

• Published: May 22, 2009 6:55 AM

• Magnus
• SK, that’s no more circular reasoning than a properly constructed recursive definition is a circular definition.I don’t know that there is such a thing as a “properly constructed” recursive definition when we’re talking about a substantive rule of decision.The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid.A recursive definition fails to accomplish this task.In fact, pretending that such recursive definitions are, in fact, substantive rules of decision, is a sneaky and underhanded way of making it look like the court is applying substantive rules of decision, when in reality they are just making policy declarations.It’s rather like saying “we can’t define pornography, but we know it when we see it.” That’s not a substantive rule. It’s a way of appointing yourself as the sole arbiter with discretionary power.Another example is that the Court has decreed that abortion restrictions are allowed unless they place an “undue burden” on the right to have an abortion. What is “undue,” you may ask? Well, they don’t say.They don’t say because by NOT SAYING, they elevate themselves to the position of being the arbiter. And, luckily enough, they are the arbiter in a legal realm where there are no substantive rules of decision telling them what might be considered “undue.”

• Published: May 22, 2009 9:33 AM

• P.M.Lawrence
• Sasha Radeta wrote “I think all libertarians agree that mere promises are not enforceable”.Actually, anybody who uses feudal law as a framework does think that. It is quite possible for a Libertarian to do that. In feudal law, it is not so much contracts as promises that are binding. In particular, where a contract (in law) does not require one party to fulfil it if the other party does not carry out his end of the contract, the feudal equivalent is the exchange of promises – and in general each promise is binding regardless of whether the other is kept (although, of course, it would often happen that each promise was itself constructed to be contingent on the other promise being fulfilled).Magnus wrote “The whole point of substantive legal rules is that they define and categorize facts (or sets of facts) into binary terms. They sort the wide world of facts and specific instances, which is infinitely variable, into one of two categories — right/wrong, permissible/impermissible, legal/illegal, valid/invalid. A recursive definition fails to accomplish this task.”Stipulating all that just for the sake of argument, even though that has not been established, a sound recursion can indeed do all that. All it needs is two things, that the recursion always rests on a prior case that is in some sense “smaller”, and that this always leads the recursion to terminate on some or other separately established base case – i.e. that it prevents both circularity and infinite regress. Of course, it is quite possible to get that wrong and get – for instance – circularity, but that is not the same thing as there being no sound recursion. After all, recursion is used to great effect in a number of areas, e.g. in computer science and the foundations of arithmetic (see Peano’s Axioms for some insight into this).

• Published: May 22, 2009 10:05 AM

• Magnus
• and that this always leads the recursion to terminate on some or other separately established base caseThat base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to.But by purporting to rely on a recursively-defined, higher-order legal term, and calling it a “test” or a set of “elements” or some kind of substantive legal principle, a court does not have to actually rely on a rule of law at all to make a ruling.This is no accident. In the absence of genuine rules, courts get discretionary power. Recursive (and circular) legal terms are (falsely) labeled as rules of decision for an institutional, systemic reason — to hide the true rule (i..e., the actual basis for the decision) behind a huge wall of pseudo-rules and pseudo-analysis, thereby giving the legal opinion the appearance of legitimacy and sound reasoning.When you get down to the bottom of one of these recursive/circular analyses, what you find, as an actual basis for the decision, is one founded on cultural bias, prejudices, policy preferences, and your garden variety lust for expanded judicial power.These recursive/circular legal concepts are a way of avoiding disclosure of the true basis of one’s decision.Here’s another one — a contract can be voided if it “shocks the conscience.” This term is also used, most recently, in the debate over permissible forms of torture (i.e., enhanced interrogations). “Shocking the conscience” is not an actual rule of law, nor a legitimate element of one. It’s (obviously) a subjective criterion. The rules as to what activity constitutes a conscience-shocking practice are conveniently missing.

• Published: May 22, 2009 10:40 AM

• P.M.Lawrence
• “That base case would, in fact, be the substantive rule of decision, and courts could openly identify them as such, if they wanted to”.Not in the example SK gave. All that requires is a base case of accepted usage emerging at some point in the past for whatever reason, no matter how unsound or even lacking the law behind it. For instance, it might be a matter involving which car had the right of way when two cars collided because one was driving on the left and the other on the right.

• Published: May 22, 2009 9:50 PM

***

Update:

I asked Grok to find other examples or discussions of this phenomenon:

Circular reasoning in the law: sources, further examples, and analogues outside law

Prepared from the phenomenon described in Stephan Kinsella, “Circular Reasoning in the Law” (May 21, 2009; also at Mises Wire and the archived Mises blog post with comments). Cross-references in Legal Foundations of a Free Society (Papinian Press, 2023), ch. 5 n.28 and ch. 9 Part I.E.

The phenomenon

The 2009 post isolates a specific pattern, not generic petitio principii in briefs. A doctrine is justified by an extra-legal “fact” (value, reliance, expectation, market harm, practice), but that fact exists only because the doctrine is already treated as law. The circle conceals a policy choice. That is the same structure Felix Cohen called a “vicious circle” and “thingification of property.”

There is no single treatise that inventories this as one phenomenon. The literature is doctrinal and fragmented. What follows is the closest body of work, plus examples not developed in the 2009 post, and the nearest analogues outside law. Every title below is linked where a stable public URL exists.

Starting examples already in the 2009 post

• Detrimental / reasonable reliance in promissory estoppel and contract. See La. Civ. Code art. 1967; Restatement (Second) of Contracts §90; Kinsella, “Punishment and Proportionality: The Estoppel Approach”, n.14; Randy E. Barnett, “A Consent Theory of Contract” (reliance critique at 274–76); Kinsella, “A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability”; review of Patrick Burke in Reason Papers 20 at 140.
• Katz “legitimate / reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347 (1967). Circularity already flagged in Rakas v. Illinois, 439 U.S. 128 (1978), n.12.
• Trademark “thing of value” justification — Cohen, quoted on the 2009 page and in “Defamation as a Type of Intellectual Property”.
• File-wrapper / prosecution-history estoppel (remembered from law school notes).
• Classification loop (vanity plates / government speech): “Classificationism, Legislation, Copyright”; later illustration Whateley v. Lackey, No. 25-1751 (4th Cir. July 31, 2026) (also CourtListener, GovInfo PDF); Lehto video “Court Says You Can Say Anything You Want on Your Vanity Plate”.

Canonical treatments closest to the post

Felix Cohen, “Transcendental Nonsense and the Functional Approach”

Columbia Law Review 35 (1935): 809–849. Public texts: Harvard excerpt (“What’s in a Trade Name?”); full PDF (Columbia/Moglen); casebook excerpt at Duke CSPD ch. 4.

On trademarks, courts take refuge in a vicious circle: advertising creates a “thing of value”; a thing of value is property; property is protected. Value, however, depends on the protection being justified. The circle is hidden by treating “property” as a thing found in the world rather than a conclusion of policy. Cohen’s general rule: “To justify or criticize legal rules in purely legal terms is always to argue in a vicious circle.”

Later discussion: Jeremy Waldron, “‘Transcendental Nonsense’ and System in the Law,” Columbia Law Review 100 (2000): 16–53 (systematicity of legal vocabulary vs. Cohen’s emptiness claim). Functionalist reading also in later law-and-political-theory work, e.g. Osgoode scholarly works on Cohen. Contemporary reuse of the “transcendental nonsense” label: Lawfare on platform/publisher classification.

George P. Fletcher, “Paradoxes in Legal Thought”

Columbia Law Review 85 (1985): 1263–1292. Repository records: Columbia Scholarship Archive abstract; PDF. Reliance circle at p. 1269 and n.30 (petitio principii, citing Quine). Related: Fletcher, “Two Modes of Legal Thought,” Yale Law Journal 90 (1981): 970; Fletcher, Basic Concepts of Legal Thought (OUP). Follow-up: Jan Broulík, “Fletcher’s Paradox Revisited” (SSRN / NYU Public Law Research Paper 18-04) (self-reference in the decision rule). Proof-paradox survey citing Fletcher: Michael S. Pardo, “The Paradoxes of Legal Proof,” Boston University Law Review.

Randy Barnett on reliance

Publications page (contracts cluster). “A Consent Theory of Contract,” Harvard Law Review 86 (1986): 269, at 274–76, remains the cleanest contract-theory treatment of why “reasonable reliance” cannot get enforcement off the ground.

Peter Suber, The Paradox of Self-Amendment

Peter Lang, 1990. The nearest book-length study of self-reference, reflexivity, and paradox in law. Access: Internet Archive scan; author’s HTML (legacy Earlham, via Suber’s note) and Harvard DASH excerpts such as Section 1, “Logical Paradoxes in Law” and later sections (circular priorities, circular contracts, consideration’s circle). Synopsis: “The Paradox of Self-Amendment in American Constitutional Law,” Stanford Literature Review 7 (1990): 53. Related volume: Suber & Bartlett, eds., Self-Reference: Reflections on Reflexivity (Martinus Nijhoff, 1987), including Suber, “Logical Rudeness.” Bio/overview: Wikipedia: Peter Suber.

Suber treats self-amendment, circular priorities, circular contracts, and the old consideration puzzle: a promise is binding only if given for a binding promise, so the contract would have to create the consideration that creates the contract.

Other legal examples not developed in the 2009 post

1. Fair use, factor four (copyright) — lost licensing fees

Courts ask whether the use harms the market. Plaintiffs then treat lost permission fees for this very use as market harm. That assumes the use is not fair. Key pieces:

• Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) (majority vs. Blackmun dissent on the market inquiry).
• Frank Pasquale, “Breaking the Vicious Circularity: Sony’s Contribution to Copyright’s Fair Use Doctrine,” Case Western Reserve Law Review 55 (2005): 777 (also Academia copy).
• James Gibson, “Risk Aversion and Rights Accretion in Intellectual Property Law,” Yale Law Journal 116 (2007): 882.
• Wendy J. Gordon, “The ‘Why’ of Markets: Fair Use and Circularity,” Yale Law Journal Pocket Part 116 (2007): 358.
• Lydia Pallas Loren, “Redefining the Market Failure Approach to Fair Use,” Journal of Intellectual Property Law 5 (1997): 1.
• Later survey of the circularity problem in factor four: evidence-based fair-use discussion (Georgia Law Review PDF); Copyright Society journal discussion of Texaco and licensing-market circularity.
• American Geophysical Union v. Texaco (2d Cir.) is the usual doctrinal flashpoint for treating a permissions market as proof of market harm.

Gibson’s larger thesis is adjacent: risk-averse users seek licenses they do not need; those licenses are then cited as proof that a market exists; the market is then cited to shrink fair use. Rights accrete by circular practice.

2. Customary international law — chronological paradox of opinio juris

A custom exists only if states act from a sense of legal obligation. But they can have that sense only if the rule already exists. Creating new custom looks impossible.

• Definition: LII Wex, opinio juris; explainer LegalClarity.
• ICJ Statute art. 38(1)(b); classic judicial statement in North Sea Continental Shelf (ICJ 1969).
• Henrique Marcos, “Addressing the Chronological Paradox of CIL: From Good Faith to Opinio Juris…,” in Customary International Law and Its Interpretation by International Courts (CUP, 2024).
• Brian D. Lepard, ch. 12 of Customary International Law (CUP).

3. Circular lien / priority systems (UCC, bankruptcy, mortgages)

Not the same justificatory circle, but a genuine legal loop: A beats B, B beats C, C beats A, and the fund is inadequate. This is likely what the old IBT / UCC / bankruptcy margin notes were pointing at.

• Grant Gilmore, “Circular Priority Systems,” Yale Law Journal 71 (1961): 53–74.
• Gilmore, Security Interests in Personal Property §39.1 (1965).
• Roderick J. Wood, “Circular Priorities in Secured Transactions Law,” Alberta Law Review 47 (2010).
• Alan L. Tyree, “Circular Priorities in Secured Transactions,” American Mathematical Monthly 87 (1980): 186–93.
• Practice notes: ABI Journal on circular priority and bankruptcy; NYLJ / Mayer Brown on circular lien priorities.

4. Katz circularity literature after the parenthetical

• Richard Posner’s classic formulation (pre-bench): it is circular to say there is no invasion unless the person had a reasonable expectation, because the expectation depends on the legal rule.
• Matthew B. Kugler & Lior Jacob Strahilevitz, “The Myth of Fourth Amendment Circularity,” University of Chicago Law Review 85 (2018): 1747; SSRN abstract; Chicago Unbound PDF and working paper. Empirical claim that popular expectations do not snap lastingly to Court holdings.
• Tonja Jacobi & Christopher Brett Jaeger, “Katz’s Imperfect Circle: An Empirical Study of Reasonable Expectations of Privacy,” Florida Law Review 77; Emory faculty PDF here; AALS draft here. Six distinct circularity mechanisms.
• Raff Donelson, “The Real Problem with Katz Circularity,” St. Louis University Law Journal 65 (2021): 809; SSRN here. The vice is using depressed expectations, produced by government practice, to withhold protection.
• Popular statement of the circularity critique: Wired, “It’s Time to Drop the ‘Expectation of Privacy’ Test” (2009), citing Jed Rubenfeld’s security-based reinterpretation of the Fourth Amendment.

5. Consideration’s old circle

19th-century formula: a promise is not binding unless exchanged for a binding promise. Taken strictly, no contract can get started. Suber notes this as a rare case where awareness of paradox helped kill a doctrine. Related: the claim that “the contract right itself” is the consideration. See Suber’s section on circular contracts and “a vicious circle,” in the DASH excerpt.

6. Value-from-protection / rights accretion beyond trademarks

Same structure as Cohen: the legal right is inferred from a market that exists only because people assume the legal right. Applies to publicity rights, hot-news, database rights, and some defamation-as-property arguments. See again Gibson (2007) and the Cohen trademark pages above.

7. Placeholder standards (from the 2009 comment thread, treated as a class)

• Assumption of risk defined as “loss the law will not compensate.” Background doctrine: LII Wex; Wikipedia; volenti non fit injuria.
• Personal jurisdiction: “notions of fair play and substantial justice” (International Shoe / Asahi line) as question-begging.
• “Legitimate governmental interest,” “abuse of discretion,” “shocks the conscience,” fair-use “fairness.”
• Fair market value defined in a way that presupposes the legal regime of exchange (comment example).

8. File-wrapper / prosecution-history estoppel

The patentee’s surrender is given scope by what a reasonable competitor would think was surrendered, while what is reasonable depends on how courts will read the history. Expectation-circularity inside claim construction. (Doctrine generally: Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002).)

9. Classification that determines the right that determines the classification

Vanity-plate / government-speech cases; public-forum doctrine; “platform vs. publisher.” Cohen’s functionalist point applies: the label is doing the work that an open policy argument should do. See Lawfare piece linked above and Kinsella, Classificationism.

A broader jurisprudential observation

Bentham already said legal terms (right, obligation, offence, service) are intersubstitutable aspects of “the law,” with no extra-legal referent. H.L.A. Hart called this “the great anomaly of legal language.” One encyclopedia treatment: “Legal Reasoning,” Encyclopedia of the Social Sciences / Encyclopedia.com (section “The circularity of legal reasoning”). Related short piece: Eric Engle, “Circularity and the Heuristics of Legal Reasoning” (SSRN, 2010). Hohfeld’s correlatives are often mistaken for this vice; they are definitional pairs, not fake justifications. Introductions: Legal Theory Lexicon 034: Hohfeld.

Kelsen’s Grundnorm is the official positivist attempt to stop the circle: validity cannot be derived forever, so the basic norm is presupposed. Overview: Pure Theory of Law; Aryeh Botwinick, “The Circular Stance of the Law in the Thought of Hans Kelsen,” Telos 131 (2005). Mark D. Walters distinguishes linear vs. circular theories of the constitution in “The Unwritten Constitution as a Legal Concept”.

Books and articles that study the pattern, not just one doctrine

There is still no monograph titled Circular Reasoning in the Law in the 2009 sense. Best cluster:

The same structure outside law

The closest philosophical name is not “paradox” but epistemic circularity / bootstrapping: using a source, rule, or practice to validate itself.

Epistemology — Münchhausen / Agrippa trilemma

Any justification ends in infinite regress, circularity, or an undefended stopping point. Wikipedia: Münchhausen trilemma; related regress argument. Coherentism accepts a virtuous web; critics say a web of false beliefs can cohere. The legal examples above are almost all vicious circles that look like coherent webs. Legal theorists sometimes name the same trilemma explicitly when discussing justification of legal consequences (e.g. teaching notes citing Hans Albert 1968).

Epistemic bootstrapping and “easy knowledge”

Nearest analogue to detrimental reliance and Katz: checking a gauge’s reliability by reading the gauge.

• Jonathan Vogel, “Reliabilism Leveled,” Journal of Philosophy 97 (2000): 602.
• Stewart Cohen, “Basic Knowledge and the Problem of Easy Knowledge,” Philosophy and Phenomenological Research 65 (2002): 309.
• Jonathan Weisberg survey, “The Bootstrapping Problem” (Philosophy Compass).
• “Reliabilism, bootstrapping, and epistemic circularity,” Synthese.
• “What’s the matter with epistemic circularity?,” Philosophical Studies.
• Jesper Kallestrup, “Bootstrap and rollback: generalizing epistemic circularity,” Synthese 189 (2012): 395; JSTOR record.
• Marc Alspector-Kelly chapter, “Bootstrapping, Epistemic Circularity, and Justification Closure” in Against Knowledge Closure (CUP).

Rule-circularity (justifying induction by induction, or modus ponens by using modus ponens) is sometimes distinguished from premise-circularity. Legal “reasonableness” tests often smuggle the first in as if it were the second.

Social ontology

John Searle, The Construction of Social Reality (1995): institutional facts exist because we collectively treat them as existing (“X counts as Y in context C”). Money, corporations, and offices are status functions. Cohen’s trademark “thing of value” is an institutional fact passed off as a brute fact.

Hermeneutics

The hermeneutic circle (Schleiermacher, Heidegger, Gadamer): part and whole interpret each other. That is an iterative spiral, not a fake external justification. Clear legal-theory statement: Legal Theory Lexicon 107: The Hermeneutic Circle. Philosophical background on vicious vs. hermeneutic circles: “Parts, Wholes, and Circles”.

Logic, self-reference, argumentation

• Wikipedia: Circular reasoning (circulus in probando).
• W.V. Quine, The Ways of Paradox (used by Fletcher).
• “Going Around in Circles,” Argumentation (2024) — formal distinction of vicious vs. benign circular argumentation.
• Gödel-style self-amendment themes in Suber; the 2009 comment thread already pointed to Suber’s introduction on logical paradoxes in law.

Economics / value theory

Cohen already has the economic version: exchange value of an exclusive legal position is not independent evidence that the position should exist. Related debates include whether “revealed preference” is tautological, and whether willingness-to-pay for a legal entitlement can justify creating the entitlement.

A compact typology

1. Expectation / reliance loop — reliance, Katz, opinio juris, “reasonable competitor” in estoppel.
2. Value-from-protection loop — Cohen on trademarks; fair-use lost fees; publicity rights; “goodwill.”
3. Label-as-justification — property, platform/publisher, government speech, classificationism.
4. Standard with no independent criterion — shocks the conscience, abuse of discretion, legitimate interest, “fair.”
5. True ranking loop — circular priorities (different problem, same family of self-reference).
6. Practice accretion — Gibson: behavior undertaken as if the right existed is later cited as proof that it should.

The first four are the phenomenon in the 2009 post. The fifth is formal self-reference. The sixth is the dynamic, path-dependent version of Cohen.

Short reading list if this is written up

Cohen (1935); Fletcher (1985); Suber (1990); Barnett on reliance; Gordon / Gibson / Pasquale on fair-use circularity; Kugler–Strahilevitz plus Jacobi–Jaeger on Katz; the CIL chronological-paradox literature; Vogel / Cohen / Weisberg on epistemic bootstrapping; Searle on institutional facts. That set covers the legal core, the extra examples, and the philosophical analogue without treating every circular brief as the same thing.

Additional URLs from the 2009 page’s own citations

• Kinsella, original webnote
• Kinsella, Mises Wire reprint
• Kinsella, “My old Mises.org Blog posts” (includes the same text plus the IBT / file-wrapper / UCC / bankruptcy recollection)
• Kinsella, PFS 2017 contract lecture (KOL225 / PFP181) (reliance circularity restated)
• Kinsella, “Legislation and Law in a Free Society” (1995)
• Generic litigation-fallacy treatment (not the same phenomenon, but same label): “Law & Logic: Petitio Principii”

I asked Grok a followup:

Thingification and the reification error

The question, with full titles and citations

What Cohen meant by thingification

In “Transcendental Nonsense and the Functional Approach,” Felix Cohen’s target is not merely sloppy language. It is a method of legal argument. Courts treat a legal relation as if it were an object already sitting in the world, inspect that object for inherent properties (“value,” “property,” “personality”), and then “discover” the rights that supposedly follow from those properties. Cohen’s name for this move is the thingification of property.

The circularity of legal reasoning in the whole field of unfair competition is veiled by the “thingification” of property. Legal language portrays courts as examining commercial words and finding, somewhere inhering in them, property rights.

The trademark example is the cleanest. Advertising is said to create a “thing of value”; a thing of value is property; property is protected. But the “thing” has the relevant value only because the law already treats the word as exclusively appropriable. The court pretends to find a thing and then protect it. What it is actually doing is creating an exclusive legal position and then pointing to the economic consequences of that position as if they were independent evidence.

Cohen’s general rule follows immediately: “To justify or criticize legal rules in purely legal terms is always to argue in a vicious circle.” Thingification is the costume the circle wears. Once “property” is a thing found in the name or the work, no one has to say: we are choosing to give A a veto over B’s use of B’s own paper, presses, and servers.

What you mean by reification

Your recurring charge is almost the same error, aimed one level earlier. Cohen is attacking lawyers who treat legal concepts as things. You are attacking theorists who treat useful concepts as ownable objects.

In “The ‘Ontology’ Mistake of Libertarian Creationists” and in the Machan memorial, you put it this way: naming a thing conceptually does not prove there is some ontological type of thing that exists and can be owned. That would be “to conflate concepts adopted for conceptual utility with real, existing things. It would be a type of reification.” Machan’s move—poems, trucks, and computer games are all “ontological kinds,” and whatever we intentionally create of such a kind is owned—is the error in textbook form. A novel is a useful unit of talk. That does not make “the novel” a rivalrous resource over which there can be physical conflict, and therefore a candidate for property rights.

The same point is in “Moral Rights: Another IP Abomination”:

just because there is a valid concept does not mean the referent of that concept “exists” as the type of thing that can be owned. I have a wife, an age, a child, a country, and my car has a color and age and weight. I don’t own any of these things. I don’t own my actions. I don’t own knowledge.

Knowledge guides the use of scarce means. It is not itself a scarce means. Love, numbers, games, reputations, “integrity of the work,” and “types” as Moore uses that word belong in the same basket: they can be talked about without being the kind of thing property law is for.

That last clause is the criterion you use instead of ontology. Property rights exist to allocate control of conflictables—scarce, rivalrous resources that can be physically used by only one actor at a time. Once that purpose is fixed, the “what can be owned?” question is answered before the “who owns it?” question. Reification skips the first question. It starts from “we can name it” or “someone created it” and infers “someone owns it.”

How the two errors fit together

They are not identical, but they are nested.

1. Reification (your term) treats a concept or abstract pattern as if it were an object of the same ontological grade as a plot of land or a machine. “The type,” “the work,” “the reputation,” “the personality in the work.”
2. Thingification (Cohen’s term) then treats the legal relation built on that supposed object as if the relation itself were a thing with intrinsic value, integrity, or property-ness. “Goodwill,” “a thing of value,” “moral rights in the work.”
3. The vicious circle closes when the value, expectation, or “harm” that exists only because of the legal relation is cited as the reason for the legal relation.

IP arguments run the whole sequence. First the idea or type is reified (Moore, Machan, Schulman, some Randians, personality theorists). Then the exclusive right is thingified as property found in that type. Then protection is justified by the value or “authorial harm” that exists only given the right. Cohen diagnosed the second and third steps in trademark law in 1935. You have been diagnosing the first step, and the whole sequence, in Lockean-creationist IP theory.

Gamrot’s critique of Moore, which you posted in the April 2026 C4SIF note, is the ontological demolition of step one. Moore needs types that can be created, possessed, used, and labored on. Gamrot’s two objections—types are not created ex nihilo, and abstract objects may not exist as laborable items at all—yield the “modest ontology” you already use without wanting the word ontology: humans rearrange tokens; they do not occupy types. That is the same point as your long-standing claim that creation is rearrangement of already owned (or unowned) scarce resources, and is neither necessary nor sufficient for title.

“The Problem with Intellectual Property” then states the institutional conclusion. Property rights assign control of scarce resources by original appropriation, contract, and rectification. Patent and copyright are state monopoly privileges that take those resources (factories, paper, servers, bodies) away from their owners. The thingified “IP right” is not another species of property. It is a negative servitude imposed on other people’s things. That is why the strained “structural unity of real and intellectual property” literature (Epstein, Mossoff, etc.) has to keep analogizing. If the “intellectual object” were really a thing like land, the analogy would be unnecessary.

Moral rights make the reification especially visible. Simon’s “investment of the self in the work,” “memories of creating,” and “integrity” talk as if the work were a psychic organ. Berne art. 6bis then thingifies that organ into an inalienable legal object that survives transfer of the copyright. You are right that this never asks the prior question: what class of things can be the subject of conflict and therefore of property? Subjective authorial distress is not an invasion of a scarce resource. Treating it as if it were is reification plus thingification plus a harm principle in place of a conflict/trespass principle.

Why the error is pervasive

It is pervasive because ordinary language invites it. We say “my novel,” “my reputation,” “my idea,” “the value of the brand” in the same grammatical slot as “my house.” The possessive is doing different work in each case—authorship, esteem, description, market price, title—but grammar flattens them. Legal doctrine then hardens the flattenings into rights. Cohen called the hardening thingification. You call the underlying conceptual slide reification. Both names are accurate if one keeps the levels distinct:

• Reification is a mistake about what exists as an ownable particular.
• Thingification is a mistake about what a legal relation is.
• Circularity is what happens when the manufactured “thing” is used as evidence for the relation that manufactured it.

Your property framework blocks all three at once. Ask first whether the candidate is a scarce means of action over which two actors can physically conflict. If not, stop. There is nothing to homestead, nothing to transfer, nothing whose “integrity” the law must police, and no “thing of value” whose protection can be bootstrapped from the value protection would create.

That is why, in the APEE talk (KOL458) and in the Springer chapter, you treat patents, copyrights, trademarks, trade secrets, defamation, and moral rights as one family. They are not unified by a common ownable object. They are unified by the same two mistakes: treating non-resources as resources, and treating the resulting legal monopoly as if it were a thing found rather than a privilege granted.

Short formula

Cohen: lawyers pretend a legal relation is a thing, so they can hide a policy choice behind a discovery. You: theorists pretend a concept is a thing, so they can hide a monopoly behind “ownership of what I created.” Thingification is the legal-realist name for the second half of the maneuver you have been calling reification. Combined with the value/reliance/expectation loops discussed earlier, it is the same machine: an abstraction is objectified, the object is assigned “property,” and the consequences of that assignment are offered as the justification for it.

***

Followup:

Thoughts on LeFevre and “ownership of intangibles”

Two similar points, two different sentences

Your 2012 post already keeps the attributions straight. LeFevre writes:

If an idea is so precious that you do not want others to use it, perfect security is possible by refusing to discuss it.

That is a remark about control-by-secrecy. As long as the idea stays in one mind, no ownership dispute arises, because no one else has the information. You then note that this reminds you of Tucker, whose own sentence, quoted via McElroy, is:

You want your invention to yourself? Then keep it to yourself.

Same family of argument; not the same line. Tucker is not offering a security tip. He is rejecting the claim that, after you have already spoken or published, the law must recreate the exclusivity you gave up. LeFevre describes how exclusive knowledge is in fact preserved. Tucker denies that publication-plus-privilege is a form of property.

What LeFevre gets right

The post recovers an early modern libertarian who already saw that “my idea” is a grammatical possessive, not a property claim. The remarks on language are the bridge to thingification and reification. “My wife,” “my boss,” “my job,” “my idea” all use the same possessive. Only title in a scarce resource is property. LeFevre sees that spouses and employees are not owned because a contract can be described with a possessive. The same solvent dissolves “my novel” and “my invention.” Cohen’s thingification is the legal version of this slide: the relation is dressed up as a thing found in the world. Reification is the philosophical version: the concept is dressed up as an ownable particular. LeFevre is working the linguistic version and almost reaching the other two.

He is also right that sounds and odors are handled by owning sources and media, not by owning the stimulation. The record, the instrument, the hall, the bottle: those are the conflictables. A ticket to a performance is not ownership of a sound-thing. It is a license to occupy a seat for a time. That is title-transfer thinking before the name.

On ideas, the structure of chapter X is sound even without Tucker’s wording. In the mind, there is no contest. Once the idea is spoken, written, or put in an art form, it is no longer exclusively bounded by that mind. Other people then use their bodies and their paper. There is no residual “intellectual object” left behind that they are stealing. Knowledge is not a scarce means of action. Tucker’s abandonment theory—public communication without contract is like scattering money in the street—is the legal implication of that fact. LeFevre states the fact; Tucker draws the challenge.

Where he slips, and why your gloss is the right one

The post is correct that the slips do not wreck the conclusion but do need cleaning.

First, tangible versus intangible is the wrong cut. Atoms are material and rivalrous but not tangible. Radio spectrum is not a thing you hold, but it is a scarce condition of action. Bouillon’s material / immaterial distinction is better; rivalrous / non-rivalrous is better still. Property tracks conflict, not visibility or touch. LeFevre’s “invisible boundaries” test would, if pressed, either exclude things that must be owned or include things that cannot be.

Second, he still talks as if contracts create “a property right in the projected labor” or “in the services” of the other party. That is the Lockean labor metaphor and the “owning services” mistake the title-transfer theory of contract is meant to kill. The farmer does not acquire a slice of the worker. He acquires a claim to specified performance or, more cleanly, a transfer of title to money or grain under agreed conditions. The worker does not acquire a property right “in” the farmer. He acquires whatever title the contract actually shifts. LeFevre’s own marriage example almost says this, then takes it back by calling the contract itself a jointly owned intangible property. A contract is an act that reallocates rights in already ownable things. It is not a third object sitting between the parties.

Third, the update about the copyright page of This Bread Is Mine matters. A writer can have a sound theory of ideas in the treatise and still print a conventional all-rights-reserved notice. That is not necessarily a late change of mind. It is the same linguistic trap: the book is “mine,” therefore the pattern in the book is “mine.” LeFevre did not finish applying his own possessive analysis to his own front matter.

How this fits the thingification / reification thread

Chapter X is a primitive but genuine anti-reification text. LeFevre starts from ownership as control of bounded things, notices that some candidate “properties” have no such boundaries, and refuses to invent a ghost object to fill the gap. That is the right instinct. What he lacks is the later criterion: the only things that need owners are scarce resources over which two actors can conflict. Ideas fail that test whether one calls them intangible, immaterial, types, or works.

Cohen would add: once the law nevertheless grants an exclusive right, it will thingify that right as “property in the idea,” then point to the value of the exclusive position as proof that there was a thing there all along. LeFevre never gets that far because he is not doing legal realism. He is doing ownership theory with a blunt tool. The 2012 commentary is the sharpening: drop tangible/intangible, drop property-in-labor and property-in-services, keep LeFevre’s point that uncommunicated ideas raise no ownership question and Tucker’s point that communication without contract is abandonment of secrecy, and rest the whole thing on rivalrousness and title transfer.

Read that way, the post is not a side note on a forgotten chapter. It is an early document in the same campaign as the ontology-mistake webnote and the Springer chapter: stop treating every useful noun as an ownable object, and stop treating every possessive as a title.