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I’m often asked by people who are interested in the criticisms of intellectual property how authors, for example, would be compensated in a copyright-free society. My answer is sometimes: “I’m not sure. They’d have to figure it out.” I say this not because I have no opinions but because I’m not a consequentialist and do not want to acknowledge that the criticism of IP law is contingent on some kind of view of what would happen in its absence. In this, I’m reminded of John Hasnas’s comments in his brilliant, classic article The Myth of the Rule of Law:

What would a free market in legal services be like?

I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. … It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge.

With the advent of state IP legislation, the state has interrupted and preempted whatever other customs, business arrangements, contractual regimes and practices, and so on, that would no doubt have arisen in its absence. So it’s natural for those new to the anti-IP idea to be a bit nervous about replacing the current flawed IP system with … a vacuum. It’s natural for them to wonder, well what would occur in its absence? As I noted, the reason we are not sure is the state has snuffed them out. This is similar to the FCC which preempted and monopolized the field of property rights in airwaves just as they were starting to develop in the common law; now people are used to the idea of the state regulating and parceling out airwave or spectrum rights and might imagine there would be chaos if the FCC were abolished (for more on this see David Kelley & Roger Donway‘s 1985 monograph Laissez Parler: Freedom in the Electronic Media, as discussed in my post Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property).

So, because people are bound to ask the inevitable: we IP opponents try to come up with some predictions and solutions and answers. Thus, in the end we must agree with Hasnas:

Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work.

How would content creators be rewarded in an IP-free market? Some answers may be found in Boldrin and Levine’s Against Intellectual Monopoly (see Jeff Tucker’s A Book that Changes Everything). Inventors invent to be first to market. Academics publish articles or books to enhance their reputation and increase their employability. (As author Cory Doctorow observes, “For me — for pretty much every writer — the big problem isn’t piracy, it’s obscurity.”) Singers or musicians might give away recorded albums for free to gin up concert sales. Pharmaceutical companies, freed of enormous tax and regulatory (including the FDA) burdens would have much less need of a patent monopoly to help make up for these costs; and could profit from being first to market and reputation (notice that Tylenol still sells for about twice the price of the generics right next to it on the shelf?). Perfume and fashion thrive without IP. Open source software is plugging along. And so on. What about movies, or novels for profit? Various ideas have cropped up. Perhaps the author releases his first book for free to get a fan base; then withholds the sequel until a certain number of fans pledge to pay for the book. As for movies, perhaps they are released first in DRM format to elegant movie houses, before being released on DVD or digitally. (In Against Intellectual Property, n.67, I related the example of how drive in movie theaters, “faced with the prospect of free riders peering over the walls, installed—at considerable expense—individual speakers for each car, thus rendering the publicly available visual part of the movie of little interest.”) It is basically the task of entrepreneurship to figure out how to make a profit off of a given service, given the realities of costs of exclusion, ease of cheap substitutes, and so on.

At the Property and Freedom Society conference in Turkey last June, someone asked me just these questions after my IP talk. One thing I suggested–brainstorming in the lobby–was that a novelist could perhaps sell his “endorsement” and consulting to a given movie version of his novel. Why would the movie studio pay him? Well if there are two or three movie versions of a novel, the version on which the author consulted and gives his “seal of approval” would likely be more attractive to his fans. So everyone benefits: the fans have an indication of which movie to see; the movie studio makes more money; and the author gets a royalty and consulting fee. Maybe he sold the book for free simply to have a chance to consult on and endorse a movie version. Who knows?

I recently came across a similar and brilliant idea introduced to me by Nina Paley, a creative artist and anti-copyright innovator (see Interview: Nina Paley on Copyright; Nina Paley’s “All Creative Work is Derivative”). Her idea is the Creator-Endorsed Mark. As the CE page on the QuestionCopyright.org site explains,

The Creator-Endorsed Mark is a logo that a distributor can use to indicate that a work is distributed in a way that its creator endorses — typically, by the distributor sharing some of the profits with the creator. … For example, the creator might say that anyone who shares any profits at all with them can use the generic “proceeds support” version of the mark. … Furthermore, a creator might grant permission to anyone who shares a certain percentage of their profits to use a “percentage” version of the mark, as long as it does not exceed the actual percentage shared. For example, a distributor sharing 25% of profits could use this mark.

Because there is no copyright (or it’s disclaimed, say) someone could distribute the work without the author’s permission and without the CE mark, but presumably CE-endorsed works would sell better as fans and customers prefer to buy from distributors who support the artist.

What’s to prevent someone from faking the CE mark itself? The idea seems to be that the CE mark is subject to trademark, misuse of which is trademark infringement. Opponents of IP might wonder if this is just replacing copyright infringement with trademark infringement. However, as I discuss in Against Intellectual Property and my post Trademark versus Copyright and Patent, or: Is All IP Evil?, there is an aspect of trademark law that could be justified under libertarian principles: namely, some types of trademark infringement are really instances of the seller defrauding the consumer. So in a free market, distributors who sold not only bootleg copies of an artistic work but falsely marked it CE would be defrauding their customers, and thus would be restricted to marginal and fly by night operations, not much different than a garden-variety bootlegger. Would customers pay more for a CE-endorsed work? Probably so, if the author was still alive and if the premium were not unreasonable; after all, as noted, people pay about twice as much now for brand-name over-the-counter drugs (Advil instead of ibuprofen, etc.), just for the reputation. (And in fact maybe the opposite would happen in some cases: instead of buying a Michael Moore CE-endorsed version of his movie, one might prefer to buy the cheaper, bootlegged version instead to have a cleaner conscience.)

As for the origin of the Creator-Endorsed Mark idea, Nina Paley tells me that if this idea

has a creator, it would be Karl Fogel of QuestionCopyright.org. He wrote about the “Author-Endorsed Mark” well before I hit the Free Culture scene. When Fogel and I collaborated on the Free release of Sita Sings the Blues, we changed “Author-Endorsed” to “Creator-Endorsed”  (… the thinking was “creator” includes visual artists, musicians, and others as well as authors of texts). I designed the logo, and we put the mark in action on “Sita” DVDs, CDs, and other merchandise.

I have to say that I like the CE approach much more than “copyleft” or similar approaches such as CC-Share Alike–as noted in Copyright is very sticky!, there are many problems with copyleft–not only that it is based on and requires copyright to exist (even Creative Commons doesn’t shy from admitting this reality: “Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work.” The CE approach works even better in the absence of copyright. It is a much cleaner, elegant, less statist, and libertarian approach, in my view, than copyleft. (For some other problems with the leftish approaches to IP, open source, and related matters, see my posts Eben Moglen and Leftist Opposition to Intellectual Property, Thick and Thin Libertarians on IP and Open Source, and An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State.)

In any case, Fogel’s and Paley’s intellectual innovation here should be strongly considered by those seeking a moral way to profit off of creative content.

The L. Neil Smith – FreeTalkLive Copyright Dispute

I have long been a fan of libertarian sci-fi author L. Neil Smith. I’ve read perhaps eight or ten of his novels, my favorites being The Probability Broach and The Gallatin Divergence, both of which I highly recommend. The only one of his I disliked–and I disliked it a lot–was Hope, co-authored with Aaron Zellman. (As I noted in my LRC article “The Greatest Libertarian Books,” other favorites include Heinlein’s The Moon is a Harsh Mistress, J. Neil Schulman’s Alongside Night, and quasi-libertarian John C. Wright’s The Golden Age trilogy.) I’ve also praised Smith’s great speech “Unanimous Consent and the Utopian Vision, or, I Dreamed I Was a Signatory In My Maidenform Bra,” especially for its interesting conclusion about just how much richer we would be in a free society (his answer: at least eight times).

I’ve long been aware that Schulman was pro-IP–he is the author of the “logorights” theory of IP, which I have criticized at length elsewhere (see my comments to Schulman in this post; also On J. Neil Schulman’s Logorights; Reply to Schulman on the State, IP, and Carson; IP: The Objectivists Strike Back!). And Wright is too–he blogged about it on his LiveJournal account a while back, though I can’t find it now–he is for copyright, because he is an author of novels. I had no idea Neil Smith was also pro-IP, but apparently he is, as a minor brouhaha yesterday revealed. Apparently libertarian sci-fi authors, even anarchists like Schulman and Smith, go astray on IP–perhaps, in part, due to the influence of another libertarian novelist, Ayn Rand.

Back in 1985 or so, Smith started circulating “A New Covenant,” a declaration of libertarian principles excerpted from his The Gallatin Divergence novel. Libertarians were encouraged to copy, sign, and mail it in with a $2 “processing and archiving” fee. I myself did this back in 1991. Recently, a group called The Shire Society, which apparently is associated with the heroic, New Hampshire-basedFreeTalkLive radio show (hosted by Ian Freeman and Mark Edge) and the NH-based Free State Project, was formed, as noted here: “The Shire Society is a voluntary association of sovereign individuals committed to the ideals peace and liberty. The Shire Society Declaration is intended to announce their non violent withdrawal of consent from the coercive state society.”

The Shire Society Declaration was based on Smith’s New Covenant, but was altered–improved, in the minds of the advocates of the Shire Society. Smith got wind of this and was upset, since he viewed it as plagiarism, theft, and unauthorized modification of his “property.” This led to an escalating exchange of emails between him and Ian Freeman, and others, as can be seen on this thread. After Smith called Freeman “socialist scum,” demanded restitution, cc’d his lawyer, and threatened to take it public, Freeman announced he would take it live to his national radio program that night–last night (July 13, 2010). Which he did. The MP3 file for that night’s show is here (local copy); Ian starts discussing this issue at 1:44:17, until the end of the show, about an hour later. I was asked to call in, and did so, participating from 2:10:15 for a good 15 or so minutes. The thread linked earlier and the podcast discussion is very good and interesting. As I noted, I’m a huge admirer of Smith and what he’s done for liberty. And I can understand him being angry if someone stole from him. But that’s the issue, for libertarians: was he stolen from? Asserting he was stolen from presupposes he has a legitimate property right in a pattern of words; i.e., it presupposes IP is valid. For the libertarian, that is the question itself: is IP legitimate? To assume there was theft is thus question-beggging.

To his credit, Smith has run anti-IP pieces on his site previously; but according to some of Smith’s emails posted by people in the comments in the FTL thread, he intends to write a defense of IP rights on his site,The Libertarian Enterprise, this weekend. I will be interested to see what Smith comes up with, but I can’t see how he can justify IP. First, it requires legislation and the state, and he’s an anarchist so can’t support that. Second, granting rights in nonscarce things always invades rights in already-owned scarce resources. Back in 1991 when I signed Smith’s Covenant, I was not yet anti-IP. If I were, I might have realized the words “we shall henceforward recognize each individual to be the exclusive Proprietor of his or her own Existence and of all products of that Existence” was a Rand-inspired “Creationist” view of property rights that does in fact imply IP rights. And although the framers of the Shire Declaration meant to improve on the New Covenant, they left in the language “we shall henceforward recognize each individual to be the exclusive Proprietor of his or her own Existence and of all products of that Existence.” In my view, the Shire Society Declaration should be further modified to excise or change this language: we are not “proprietors” of all “products” of our “existence”; this is vague, loose, quasi-Galambosian-Randian terminology that is subject to equivocation. Rather, we have property rights in our bodies and in all scarce resources homesteaded by us or ancestors in title, unless and until these rights are altered by an act of aggression or some consensual title transfer. (For more, see my “What Libertarianism Is“; aslo links in this post:  Objectivists: “All Property is Intellectual Property”, including The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism, Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Inventors are Like Unto …GODS….; Intellectual Products and the Right to Private Property; Owning Thoughts and Labor; Elaborations on Randian IP; and Objectivists on IP.)

I’d like to reiterate my respect, admiration, and gratitude for Smith and his heroic libertarian activism and wonderful novels. But I disagree with him–strongly–on IP. We who oppose IP are not collectivists or socialists. In fact it is precisely because of our reverence for property rights and justice, and our opposition to statism and socialism of all forms, that we oppose IP, as explained in my articles “Intellectual Property and Libertarianism” and “The Case Against IP: A Concise Guide.”

Update: FreeTalkLive had further discussion of this on their July 14 show, from about 44:00 on.

Another update: See Guest Comic by The Muslim Agorist: The Revolution will be Plagiarised

Update 3: Smith has written a reply of sorts: Little Criminals: The Context of Consent; Seth Cohn provided a good dissection of it in a comment on FreeKeene.com. I have to say I cannot discern an argument at all in Smith’s piece. He simply assumes that what you create is your property, and throws in a few utilitarian considerations.

Update 4: See also my post Replies to Neil Schulman and Neil Smith re IP.

Update 5: FreeTalkLive’s July 19 show discussed Smith’s Little Criminals: The Context of Consent (start at 1:02:35) and also, in response to a call-in by Todd Andrew Barnett, on the July 21 show (start at 50:41); and again, on the July 23 show (28:14) and on the July 25 show (15:10).

Update 6: Smith has posted a couple of anti-IP articles on his site, The Libertarian Enterprise, Seth Cohn’s A response to “Little Criminals” with a challenge… and Theodore Minick’s IP is dead, Long Live Media!

The Ethical Case Against Intellectual Property, by David Koepsell

No Method to Patent Madness: The Supreme Court’s Bilski Decision

The Supreme Court handed down this term’s final four decisions today: Christian Legal Society Chapter v. Martinez, on public university limitations on a Christian student group’s rights of association; the McDonald v. Chicago case incorporating the Heller gun decision against the states (Huebert’s discusssion); Free Enterprise Fund v. Public Co. Oversight Bd. (a Sarbanes-Oxley decision); and Bilski v. Doll, a much-anticipated patent case.

Patent law is mind numbingly arcane, technical, and boring, so let me simplify as much as possible. This case was about what the legal test should be to determine whether certain processes can be possibly eligible for patent protection. For typical practical technical or industrial processes, it’s not a difficult question. But for “business-related” methods, such as the one here–which had to do a way for commodities buyers and sellers in the energy market to hedge against the risk of price changes by following a certain mathematical formula–the question gets trickier. Courts are leery of opening the door all the way because then we’d be swamped in even more ridiculous patents than we are now (such as the attempt by Dustin Stamper, President Bush’s Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims “a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities”).

The Court of Appeals for the Federal Circuit (CAFC) tried to do this by adopting a more rigid test than had been used before. They said that a process could be patented only if it (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing–this is the “machine-or-transformation test.” Based on this test, the claimed business method was rejected. The problem is, this test is not in the Patent Act. So the Supremes had to take a crack at it. Now I have mentioned this case before, in The Arbitrariness of Patent Law; Supreme Skepticism Toward Method Patents; and Radical Patent Reform Is Not on the Way. This is one of these cases that had patent lawyers crying crocodile tears, gnashing their teeth, acting as if this was just part of the terrible and radical–radical!–movement to scale back patent rights. Anyway, I predicted:”I suspect the Court will choke back a bit on software and business method patents–but not too much.” It was obvious from the oral arguments that the Court saw how ridiculous it would be to have an open test that allowed a lot more types of processes be eligible for protection. You could have patents on anything. So they want to choke back on this, and so did the CAFC. Unfortunately, the patent law is there. And the judges have to interpret this mess. It’s not their fault, really. I don’t blame them for this impossible task. As I noted in a recent post,

As I noted in Another Problem with Legislation: James Carter v. the Field Codes, there is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

Or, as I note in “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), “Thus, previously, law was thought of as a body of true principles ripe for discovery by judges, not as whatever the legislator decreed. Nowadays, however, legislation has become such a ubiquitous way of making law that ‘the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.’” [Bruno Leoni, Freedom and the Law]

The point is, the judges here are merely interpreting arbitrary words of an artificial law, a statute–a written down edict of the legislature, a bunch of words that have no inner harmony, no guarantee of consistency, no relationship to justice. So you can’t really criticize the courts too much for how they construe these legal abominations.

Back to Bilski. So the Court rejected the CAFC’s holding that the “machine-or-transformation test” was thesole test for determining patent eligibility. They said that while this test “may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible ‘process.’”But they had to find a way to strike down this patent, so they did so based on an older test, one that just said you can’t patent “abstract ideas.” So, the Court was able to reject the narrow test of the CAFC, without having to allow this business method patent. But they wanted to encourage the CAFC that they could try to find yet other ways to limit questionable method patents: “In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text.” I.e., they punted: you guys figure out a better way to shut the doors a bit more, consistent with this statute.

So what do we have: we have a very slight narrowing of patent eligibility by re-use of an old “abstract idea” test; a rejection of the more bright-line, narrower but unstatutory test of the CAFC; and more legaluncertainty. And while the patent bar will use the slightest modification of patent law to cry that the sky is falling, it’s not. Unfortunately.

(H/t Anita Acavalos for suggestions re the title.)

Locke, Smith, Marx and the Labor Theory of Value

I am trying to research connections between Locke, Smith, and Marx regarding labor. If I recall, Rothbard and others have written about Smith’s views on labor influencing Marx. I’d appreciate any suggestions or discussion as to good references on this issue.

In addition to the Smith-Marx connection, It is also my view that Locke’s idea that homesteading rests on “ownership” of labor is mistaken–it’s an unnecessary step; you can show Lockean homesteading is justified without making the crankish assumption that you own your labor. But the assumption that you can own your labor, I believe, has led to (or supports) modern mistakes like reputation rights, intellectual property, and the like–it’s led to an overemphasis on the right to “own” whatever you “create” by your labor, without first asking whether the thing created/labored upon is ownable in the first place (see, e.g,. my posts Objectivists: “All Property is Intellectual Property”, Rand on IP, Owning “Values”, and “Rearrangement Rights”, and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading).

I’d like to investigate the extent to which Locke’s (and related) views about labor (and its role in homesteading) influenced Smith and the labor theory of value. Tim Virkkala tells me

I think it’s widely believed that the Lockean Theory of Land Acquisition gave weight to the Labor Theory of Value, though the two have almost nothing in common. … One is a theory of the justice of taking land out of “the commons” and respecting property rights; the other is a theory of how labor somehow effects prices and exchange ratios. Weird that it ever bled from one domain to the other. Rothbard charged that Adam Smith was unduly influenced by (to Rothbard) unspeakably vile Protestant views in Scotland. This seemed a tad strained to me. After all, I’ve read THE THEORY OF MORAL SENTIMENTS, and it’s not very Presbyterian.

Basically, I wonder if it can be shown that Locke’s misplaced and overly metaphorical emphasis on owning labor led not only to IP and related bizarre notions but also to communism. If anyone has any suggested references discussing this connection, please note or discuss in the comments.

Note: On an email list, David Gordon did mention this: “On the relation between Locke’s theory of property and the labor theory of value, R.L. Meek, Studies in the Labour Theory of Value, argues against a connection. G.A. Cohen, “Marx and Locke on Land and Labour” is a very good paper.” I’ve just ordered the former book as well as Cohen’s book in which his paper appears, but have not yet read them.

Legal and Logical Positivism

Incidentally, I am also interested in a separate question:

I believe I read long ago some intriguing analysis linking legal positivism with logical positivism–showing the commonalities and interrelationships. But I’ve long lost this reference and have not been able to find exactly what I’m looking for. If anyone knows of any good discussions about the links between legal positivism and logical positivism, I’d appreciate you sharing it.

I think it’s time for some libertarian to set the record straight on legal positivism, and to do this right I think its connections to logical positivism need to be analyzed as well. For legal positivism, as a libertarian this issue has always frustrated me. The natural law types seem to take a bizarre stance on it, speaking in overly metaphorical, colorful, non-rigorous, almost mystical language. For example they talk about how law and morals cannot be separated, which seems like a nonsense idea in the first place. A strict interpretation of this would mean we cannot even identify existing positive law as law if it is not just law (to make this worse, the standard of “just” for most natural lawyers is not libertarian; it is more procedural and/or religious/statist).

The common law court/militia nut types exemplify this by capitalizing the word “Law” when they speak of “just” or “valid” laws. They say that law is not a Law if it is not just, and so on, which seems needlessly semantically disingenuous and crankish to me. I’ve always thought that of course we can identify something as a law even if it is unjust, and thus we can and should distinguish between just law and unjust law (not that just any dictate of a state is law–as even H.L.A. Hart shows in The Concept of Law–some decrees can be so arbitrary and unlaw-like as to not even be law, but that does not mean that every law that is, is just). I’ve always thought that what is unlibertarian about legal positivism is not the idea that law can be “separated” from morals (i.e. that we can identify something as a law, even if it’s a bad law), but rather the assumption that law can be, or even must be, issued by some sovereign–namely the state, or its legislature. (And to be honest, I have always thought that natural law is legal positivist in this sense as well, by just pushing the ultimate law-maker back from the human legislature to God; but to my mind, the very idea that justice, goodness, true law can be decreed by any entity, even God, is fallacious and contrary to the notion or rightness and justice itself.) And I have an inkling that this form or aspect of legal positivism–the idea that law or morals can be issued by decree of some authority–the part I view as unlibertarian–is somehow linked with logical positivism/monism/empiricism/scientism. But I have struggled to make this connection just right in my mind, though I feel that it is there; and I believe I have read something on this by some acute observer in the past–some normal commentator, not even some libertarian with an axe to grind.

As above, if anyone has any suggested references discussing this connection, please note or discuss in the comments.

Update: in reply to the comment on my cross-post on my blog:

Thanks. Many people say legal positivism is just the idea that we can identify existing law without necessarily pronouncing on its legitimacy–its morality of justness. If that was all it was, I would hardly see what the debate is about, since we obviously can recognize law even if it is unjust law; there can be unjust law. This is especially so when law is made by legislative decree.

I think there is a something more to legal positivism, and this aspect is more troubling to libertarians and it is this aspect that I think makes it arguably have a connection to logical positivism. It is, as I said, the idea that law is or can, or really must, be decreed, by some law-maker, some authority. It is the idea that something cannot be a real law unless it has the blessing of the state. I suppose I see a possible connection here to logical positivism since it is monist. It is empiricist. The legal positivist seems to be monist, to me, too, in a sense, since he sees no “reality” to the normative realm. If I say this is a just law for such and such reason, and that is an unjust law, then he thinks this is mere unscientific metaphysics, since it does not have any teeth to it. He is like the empiricist-logical positivist in that he sees things as real only if they have direct or physical consequences, are testable, and so on. The logical positivist dismisses apriori and teleological reasoning as mere metaphysics or empty assertions. It’s only real to him if its formulated as a falsifiable law that can then be subjected to experiment and data and possible falsification. Likewise, the legal positivist only thinks of a rule as a “real” one if it is enforced and issued by some authority. This leads them to not only dismiss moral reasoning about “natural law” on the grounds that it’s mere babble or wordplay, it leads them to have little objective criticism of positive law that does exist. If you start to think of “real law” as only law that the sovereign decrees and enforces, then you start equating law with “whatever the sovereign does.” You see this mentality echoed all the time when people, like Rush Limbaugh, say, say that drugs should be illegal, because they are illegal.

And when you start to become (legal) positivist like this, you gradually erode any principled opposition to the positive law. Sure, your typical mainstreamer will have preferences as to what law or constitutional feature he wants. But his criticisms are ultimately flaccid and weak because they are inferior to the overarching legal positivistic assumptions. They can’t say that this positive law is unjust because it does not conform to this idea natural or moral law–since they have dismissed the latter as being unscientific and metaphysical. So they are left resorting to unprincipled, non-rigorous “balancing” tests, resort to democracy/majority vote, and utilitarian and wealth-maximization reasoning (X should be the law, not Y, because it generates more efficiency or wealth etc.).

And we see such things have increased with the rise of legislation as the supreme source of law. Nowadays even in common law countries legislation has come to dominate the common law as the primary source of law. In America, in a way it’s worse since at the “top” of the legislative and state-sovereignty pyramid is the Constitution. Sure, it’s said to be a “higher” law, and it’s more general, principled, and abstract than mundane statutes and legislation. But it’s just a written piece of legislation, all the same, and it enshrines in people’s minds the idea that law by its nature “comes from” the decree of some sovereign authority, namely the state and its Congress/legislature. (And as I mentioned above, a similar mistake is made by some natural law types when they say that it’s God, not the legislature, who makes the rules. This mistake is not as bad or insidious, but it’s still a mistaken notion about the nature of law, norms, and morals and right and wrong, in my view.) So then the debate becomes one about what this language in the Constitution means–not about what right and wrong is. Sure, normative and moral concerns affect the arguments they make, but they are basically arguing about what these written words mean–to determine the law.

As I noted in Another Problem with Legislation: James Carter v. the Field Codes, there is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place.The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

Or, as I note in “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), “Thus, previously, law was thought of as a body of true principles ripe for discovery by judges, not as whatever the legislator decreed. Nowadays, however, legislation has become such a ubiquitous way of making law that ‘the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.’” [Bruno Leoni, Freedom and the Law]

This is the aspect of legal positivism I despise–not the trivial idea that you can recognize a bad law as a law even though it’s bad.

For those who say legal positivism is only this trivial idea, they should read Hart’s The Concept of Law, and the various commentaries on the civil law itself. The western world’s major legal systems today are divided primarily into common-law based systems, and civil-law based systems. The civil law is based on various codification efforts, such as the French Napoleonic code, which itself was a codification of various evolved principles based ultimately on Roman law. In a sense, common law has more in common with Roman law than civil law does–both common law and Roman law were more or less decentralized, non-legislative systems–they were not dominated by legislation. The civil codes, while often elegant because they were scholarly codifications of decentrally-developed Roman law principles, exhibit a type of extreme legal positivism in that they enshrine legislation as the primary source of law–this is legislative supremacy. Sadly, however, even the elegance of the early codifications is being swamped by the rise of patchwork, artificial legislation; and even the common law is being gradually submerged in a sea of ad hoc statutes and regulations. Even in America, one of the primary “common law” countries, legislation has dwarfed it and in any case, as noted, our written Constitution at the top of the legal pyramid imbues the whole system with legal positivism similar to that of the civil law countries’ civil codes, so that the idea of natural justice and natural law and common law has become more marginalized.

For more commentary on this, see:

• my “Legislation and the Discovery of Law in a Free Society,” at footnote 5 and accompanying text et pass.: “modern civil law principles are embodied in a statute called a Civil Code, and the civil law enshrines legislation as the primary source of law.5 … 5Legislative supremacy is announced in the very first articles of the Louisiana Civil Code. Article 1 provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.”
• Yiannopoulos, A.N., The Civil Codes of Louisiana (“the Louisiana Civil Code differed from the Napoleonic Code in its approach to the fundamental matter of sources of law. The extreme legal positivism of the Code Napoleon that has elevated legislation to the status of the single source of law may be contrasted with the genius of the Louisiana Civil Code that has always recognized custom as an authoritative source of law and equity as a source for the resolution of disputes in the absence of a positive law or custom”);
• Robert A. Pascal’s Book Review of Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (1993) (“Professor Herman’s failure to see the Digest of 1808 and the Civil Code of 1825, and therefore the Revised Civil Code of 1870, as primarily Spanish law documents may be attributable to his evident passion for French Enlightenment thought, particularly its secularism, its rationalism, and its individualism, and the desire to have the Louisiana codifications envisioned in that light. It may very well be that without their rationalist spirit the French would not have attempted, much less succeeded, in stating their civil law so simply, so beautifully, and in such magnificently organized form as they did in the French Projet and in the French Civil Code. But that form could be utilized by Louisianians seeking to state the basically Spanish law as simply, as beautifully, and with as much organization, without in any way subscribing to French secularism and French
  legislative positivism.”);
• Jean Louis Bergel, Principal Features and Methods of Codification, 48 La. L. Rev. 1073 (1988) (“A new code stems from the will of its authors to consecrate a doctrine and to translate a specific inspiration into positive law. Even though the innovative forces vary according to the circumstances, a true codification aims at instituting a coherent body of new or renewed legal rules destined to either establish a new legal order or to restore the preexisting order. It occurs only after a thorough research, a general reflection, and a creative effort through which choices have been made, guidelines laid down and, lastly, decisions taken. Thus, in France, the 1804 Civil Code was based on fundamental ideas which were quite new at the time: the uniformity of the law throughout the whole territory; the acknowledgement of legislation as the only real source of law; the comprehensiveness of the law regulating all social relations; theseparation of law from morals, religion, and politics.”);
• John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d. ed. 1985
  • “Another dimension of the movement toward state positivism was provided by the secular character of the European revolution. Although there were variations in form and degree from nation to nation, the idea that law was of divine origin–whether expressed directly, as in divine (i.e. scriptural) law, or expressed indirectly through the nature of man as created by God, as in Roman Catholic natural law–now lost most of its remaining vitality. Formal respect might still be paid to the deity in the lawmaking process (as, for example, in the American Declaration of Independence), but henceforward the operating theory was that the ultimate lawmaking power lay in the state. Roman Catholic natural law had lost its power to control the prince. Secular natural law, while providing many of the ideas that were the intellectual fuel of the revolution, was ineffectual as a control on the activity of the state. It was backed by no organization and had no sanctioning power. The perennial controversy between natural lawyers and legal positivists (familiar to all students of legal philosophy) thus was decisively resolved, for operational purposes at least, in favor of the positivists. Consequently, although this debate still goes on, it has had a distinctly academic flavor since the emergence of the modern state. All Western states are positivistic.”
  • After the French Revolution, “one reason for the attempt to repeal all prior law, and thus limit the effect of law to new legislation, was statism–the glorification of the nation-state. A law that had its origins in an earlier time, before the creation of the state, violated this statist ideal.”
  • “We have seen that the role of the civil law judge is generally thought to be much more restricted and modest than that of the common law judge. It is reasonable to speak of the common law as a law of the judges, but no one would think of using such terms in speaking of the civil law. The image of the Roman iudex, the alleged abuses perpetrated by judges under the old regime, and the conce tion of the role of judges that emergcd in France during the revolution converge to limit what judges are supposed to do. Legislative positivism, the dogma of the separation of powers, the ideology of codification, the attitude toward interpretation of statutes, the peculiar emphasis on certainty, the denial of inherent equitable power in the judge, and the rejection of the doctrine of stare decisis–all these tend to diminish the judge and to glorify the legislator.”
• Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (1993) (Centralization of Governmental Authority: “Unification of law through codification also implied political centralizationwith legislation as the chief source of law. Napoleon himself had elevated the legislator to the pinnacle of government. “Who has the place of God on earth?” he asked. “The legislator.” Some historians have suggested that Napoleon was referring to himself. A virtual duplication of a provision of the French Projet du gouvernement of 1800, Article 1 of the original Louisiana Civil Code announced the doctrine of legislative supremacy: “Law is the solemn expression of the legislative will.” In accordance with the separation of powers proposed by Montesquieu in his Spirit of the Laws, the legislature made laws, the judiciary interpreted them, and the executive carried them out. We know that many of the French revolutionaries admired the philosophy of Jean Jacques Rousseau. Rousseau’s vision of legislation must have figured in Napoleon’s assumptions about codification. According to Rousseau’s Social Contract, the legislator expressed the citizens’ general will in positive enactments and transcended the competing demands of particular interests.”);
• my post Homesteading, Abandonment, and Unowned Land in the Civil Law (discussing the legal positivism of the civil code regarding homesteading and property ownership)

Helpless Mainstreamers Grappling with Intellectual Property

recent CNET video on “Intellectual property rights vs. journalism” shows a Stanford University’s Innovation Journalism conference on June 7, with a panel discussion by various mainstreamers discussing the quesion “Is intellectual property protection a threat to journalism?” The lack of libertarian principle and sound economics has these commentators floundering as they discuss various cases where IP infringes free speech and freedom of the press. Lacking any principled approach they retreat to legal positivism, talking about how the Constitution protects both freedom of the press and speech as well as IP rights, so some “balance” must be made. Without Austrian economics and libertarian principle, even well-intentioned people, who sense that something is wrong, are helpless before the state’s propaganda and onslaught of legal positivism.

Book Review of Hoppe Festschrift

Property, Freedom, and Society: Marzipan in Honor of Hans-Hermann Hoppe

David Howden has written an excellent review of Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (New Perspectives on Political Economy, Volume 5, Number 1, 2009, pp. 73–80). Howden writes:

Many academics toil a thankless life, striving for truth amid a sea of fallacies and inaccuracies. Some who do this with mediocrity are ignored. Those who do it well are often subject to intense criticism and ridicule. A select few rise to the challenge, and with conviction, carry forward – ever aiming to convince the masses that their truthful pursuit is right. Of this miniscule number of individuals, only a handful may ever reach the point where their peers recognize them for their insights, and reward their toils accordingly. Hans-Hermann Hoppe is one such individual.

… The collection of scholars who have come together to pay their respects reads like a veritable “who’s who” list of the world’s leading political philosophers. Hülsmann and Kinsella note in their brief introduction that after Murray Rothbard’s untimely death in 1995, Hoppe assumed a role of “uncontested leadership” among the Austro-libertarian scholars. The scope of this leadership is evident as one reads the contributions offered by his admirers in the following pages.

… The thirty-five contributions to his Festschrift … show the far-reaching effects that his writ- ings have had. In many diverse fields we can see the torch of Hoppean economics and political philosophy carried on. The quality of the contributions is outstanding and should result in this work being highly read and influential in furthering the Austro-libertarian research paradigm.

In many ways, it is unfortunate that honors such as a Festschrift come along only once a lifetime for an individual. With so many contributions currently progressing and many significant works yet to come, it will be interesting to see our Herr Professor Doktor’s sphere of influence grow as the years continue. Until such a time, the present work is a succinct place to read the scope and influence of Hans-Hermann Hoppe’s works over his lifetime; let’s hope that more is to follow in the future.

As a piece of Festschrift trivia, as I noted in Bodrum Days and Nights: The Fifth Annual Meeting of the Property and Freedom Society: A Partial Report, at the recent Property and Freedom Society conference in Bodrum, Turkey, a guest presented a festschrift-cake he had had made in Estonia, entitled “Property, Freedom, and Society: Marzipan in Honor of Hans-Hermann Hoppe,” which was served as part of the dessert at the closing banquet.

Terence Kealey: “Science is a Private Good–Or: Why Government Science is Wasteful”

I recently attended at the Fifth Annual Meeting of the Property and Freedom Society in Bodrum, Turkey (see my Bodrum Days and Nights: The Fifth Annual Meeting of the Property and Freedom Society: A Partial Report). I delivered a speech entitled “Ideas are Free: The Case Against Intellectual Property.” The speech following mine was by oneTerence Kealey, a biochemist at the University of Buckingham and author of Sex, Science and Profits and The Economic Laws of Scientific Research. Kealey is a fantastic speaker and his fascinating, riveting talk, “Science is a Private Good – Or: Why Government Science is Wasteful” (video; audio), perfectly complemented my anti-IP talk–in fact his book Sex, Science and Profits has a chapter calling for the abolition of patents. (The other PFS speeches (see the Program) are being uploaded and will be linked here.)

Kinsella: Ideas are Free: The Case Against Intellectual Property: or, How Libertarians Went Wrong

Earlier this month, I spoke at the Fifth Annual Meeting of the Property and Freedom Society in Bodrum, Turkey (see my Bodrum Days and Nights: The Fifth Annual Meeting of the Property and Freedom Society: A Partial Report). My topic was “Ideas are Free: The Case Against Intellectual Property,” though a better title might be something like “Ideas Are Not Property: The Libertarian IP Mistake and the Structure of Human Action.” It is now available in audio and video. The other speeches (see the Program) are being uploaded and will be linked here.

PFS 2010 – Stephan Kinsella, Ideas are Free: The Case Against Intellectual Property Rights from Sean Gabb onVimeo.