Argumentation Ethics, Estoppel, and Libertarian Rights: Transcript

Below is an edited transcript of my presentation “Argumentation Ethics, Estoppel, and Libertarian Rights” delivered (by remote video) at the 6th Adam Smith Forum, Moscow, Russia (Nov. 2, 2014).

Video and audio for the speech, plus further information and related resources, are available at Kinsella on Liberty Podcast, Episode 161.

Argumentation Ethics, Estoppel, and Libertarian Rights 

Stephan Kinsella
6th Adam Smith Forum, Moscow, Russia
Nov. 2, 2014
(Edited transcript)

Hello. This is Stephan Kinsella. I am speaking today from Houston, Texas in the United States. I am happy to be able to present to the Adam Smith Forum and I appreciate the invitation to speak. I did speak here in 2011, ¹ remotely that time as well. I was unable to attend in person. And I hope to remedy that someday and to visit Moscow and Russia. But I appreciate the invitation.

Today’s topic will be on “Argumentation Ethics, Estoppel, and Libertarian Rights”. I have spoken and written on these topics before. More detail can be found in the notes to the podcast I will do of this lecture after the event. But if you want to follow up you can go to my website which is stephankinsella.com and I will have resources available there, primarily a previous Mises Academy course called “Libertarian Legal Theory” and also a course on the social theory of Hans-Herman Hoppe. ²

So a brief introduction. I am an attorney in Houston, Texas. I am a long-time libertarian and follower of the Austrian School of Economics, primarily the thought of Ludwig von Mises, Murray Rothbard and Hans-Herman Hoppe, and also have been an anarchist libertarian for quite some time. I have developed my own set of views about libertarian rights and related matters and that’s what the topic of today’s conversation will be.

Normally when I give such lectures or talks, I would have Q&A. This is not live, so I can’t do that. But I am completely open to discussion, questions. And you can email me or post this on my website or talk to me on Facebook. I’d be happy to discuss these issues further if today’s lecture is not sufficiently clear.

To a lot of libertarians nowadays I am more well-known for my work in intellectual property, primarily because I am an intellectual property attorney. And so that is one area I have written a lot about because it’s a difficult issue to sort out. That was the topic of my 2011 lecture for the Adam Smith Forum. ³ And I don’t mind talking about IP but I will say it’s not my favorite topic. And at this point I’ve given 100, 200, 300 lectures on the topic and there’s not much left to say except for me to point to a previous lecture that I’ve given when questions arise. ⁴

But my personal interest in libertarianism has always, always been primarily in rights and rights theory and related areas: economics and the law, epistemology, philosophy, legal theory itself, contract theory. Intellectual property was something I had to solve in my own mind to move forward, but I greatly prefer the topic which is today’s lecture, which is about the foundation of rights.

My views are somewhat idiosyncratic like most views of most libertarians. Everyone has their own approach. So I can only plead this is my own personal view and you’re free to take it or leave it. But I have to present my own perspective on things. Because I’m alone in a room and I don’t have the pleasure of seeing you people, the tone may be more conversational than normal for a lecture. So let me just lay out how I see the foundation of rights and the importance of rights, the nature of rights, what individual property and libertarian rights are and why it matters.

So first I would say that in order to discuss this topic coherently—and I will get in a moment to the different approaches libertarians have to this topic and related thinkers—we have to define what our subject  is. We have to know what libertarianism is. So I think we need to define libertarianism before we engage in trying to justify a particular approach to it. And my current view is not radically different than the way I believed twenty years ago; but the way I formulate these ideas may be a little different because we learn over time what counterarguments to predict and to try to rebut. We learn that certain ways of phrasing things are confusing or misleading or lead to error or confusion. So over time I’ve developed my current view of what the libertarian philosophy is and is about, which is what I will base my remarks on.

In my view, libertarianism is a social theory or a social philosophy or a political philosophy which is concerned with the legitimacy of the use of force in interpersonal relationships. Man finds himself in a world populated by other beings like himself, other humans, and also in a world of scarcity and finiteness. That is, there’s the possibility of conflict and our lives are short and finite. There are some advantages to living in society with other people which is why there is civilization or society in the first place, and we are lucky to live in such an age. Every society develops rules or norms that determine answers to questions about who is the appropriate controller of a given resource. This question only arises because of the possibility of conflict.

This is a point that Hans-Hermann Hoppe has emphasized. ⁵ Hoppe is my personal, probably, greatest influence, up there with Mises and Rothbard whom I think are, those three are probably the three greatest intellectual, social, libertarian thinkers of the last 75 years or so.

So every society, every political philosophy has a need to answer the question who is the rightful owner of a given resource because there’s always the possibility of conflict. So, in a sense, as Rothbard points out, all political theories are really about property rights. ⁶ There’s always a legal, institutional, societal answer to the question: who owns a given resource? Who is the proper owner of a given resource?

The libertarian approach is unique in the way we answer the question but we’re not unique in that we try to answer the question. Every political philosophy has some implicit or explicit answer to the question.  So, for example, if you’re a complete communist and you believe that the state should own the means of production, the answer to the question “who should own this factory?” is: the state or the people. If you’re a welfare statist, then you think that the poor have some kind of claim on resources. But there’s always an answer to the question about who owns particular things.

The libertarian answer is unique in that it is clear and unabashed and principled and consistent. And to come up with an argument for or against it you need to at least understand what our vision of social life is. And in my view what is unique and what distinguishes the libertarian perspective from other views is our property allocation scheme. ⁷

Our idea, in my view, is very simple and it boils down to three simple maxims or principles or rules, the most basic of which is the idea from John Locke, the Lockean idea of what we sometimes call homesteading or called original appropriation [plus self-ownership]. That is the idea that if there is an unowned resource in the world, like a plot of land, or something else, then the first person who transforms that resource or puts it to productive use or who puts a border around it, which Hoppe calls embordering, has a better claim to the resource than anyone else, unless—unless a couple other things happen which will be the other two principles.

That is unless this original owner, this natural owner as Hoppe calls him, has transferred the resource to someone else by contract, that is by consent. So that is the second great principle that libertarians adhere to when we determine ownership of resources (outside one’s body).

And the third would be some kind of restitution or rectification principle. That is, if there is an involuntary interaction between two people, if someone commits a tort as we call it in the common law, a crime, trespass—then in this case they harm someone else by using their resources in a way that was not consented to. In that case, the malefactor, the tortfeasor, the bad guy, owes some kind of compensation to the victim. You can call that restitution. You can call it rectification. But in that case, a transfer of property rights could be effected as well.

But aside from those three principles, there’s no other rule that we really need to consult to determine the owner of a given resource at a given time [for non-bodily resources; slightly different self-ownership rules apply in the case of human bodies]. Any time there’s a dispute between two people, it’s always, always a dispute about who gets to control a given resource, whether that resource is the body of a given person or some other external resource in the world like a tree or a car or a basket of apples or a sheep or a piece of land or something like that. Disputes are always disputes over resources. Conflict is always conflict over resources. And human rights are always property rights for this reason. And laws are always about property rights. So every time there’s a dispute, it’s always really about the rightful controller, the legally-recognized controller—that is, the owner—of a specified scarce resource, whether it’s a human body or some other resource in the world.

And the libertarian answer is that we determine the owner of a contested resource by consulting these three principles: original appropriation or Lockean homesteading, consent or contract, contractual title transfer that is, and rectification [again: for external goods; self-ownership rules apply in the case of bodies]. And when you consult these three principles, a unique answer will always emerge.

Now this doesn’t mean justice is perfect. It doesn’t mean that mistakes are impossible, but at least that is our attempt to do justice. That is how we attempt to do justice: by consulting these three principles [, plus self-ownership principles].

Now these principles are fairly common sense and they are embedded in most practical legal institutions throughout society to one degree or the other. The difference is that libertarians make no exceptions. We are totally consistent. That is, we follow these principles to their end and we don’t say, for example, that usually the first user of a resource is the owner—unless someone else has a greater need, for example, which is the welfare statist claim. So we don’t make exceptions.

Now that is a more or less descriptive account of what libertarians believe. So then the question becomes: why do we believe this? Why do we favor this? Is there a justification? What does it mean to have a justification for rights? If you think about factual claims, claims about the world, like there is gravity or we are humans or the universe is 14 billion years old. These are factual claims that have some relevance and there are ways to justify these claims. We adduce evidence. We use reason. We use logic. Etcetera.

Humans relate to each other on a realm that is not the same as the causal laws. This is why Mises, probably the greatest thinker of the Twentieth Century, or one of the greatest, describes the world in terms of what he calls dualism. So he believes there are two different realms of understanding in the world. One is the causal. That is how we understand cause and effect. That is physical laws. And we need to understand this when we act as humans. This is part of Mises’s logic of action which he called praxeology. So humans employ means—scarce means, scarce resources in the world—to achieve some end or state of affaris in the future that will be different than if we didn’t act, we didn’t interfere with matters. So we need property rights in these means so that we can use them unmolested by others, in a conflict-free fashion.

But we also deal with other people. And people are motivated by purposes. Human action is purposive. And that’s the field of teleology. And so, when we deal with each other, we seek not only to justify propositional statements about causal laws or facts in the world but we seek to justify normative propositions. Now norms just mean a rule. Humans live among each other. And because we have free will and we can choose to either cooperate with each other or to harm each other, humans seek rules of social behavior that govern what is permissible and what is not permissible. And ultimately, the civilized man believes in certain rules that say that interactions are permissible if they’re cooperative and other interactions are not permissible, like crime or torts. The libertarian rule is, as I stated before, is a normative view, a view of what actions are permissible.

So the question is: why do we believe these things? Why do libertarians believe what we believe? And what could possibly justify these norms? Now when I was a young libertarian, let’s say thirty years ago, the reason I think I became libertarian, which may be similar to the reason a lot of you are libertarians, is because of an intuitive appeal of the idea of justice. There is something about the libertarian idea that appeals to people that are really interested in the idea of justice. And that is this idea of reciprocity or symmetry. Simply stated, the libertarian idea as formulated by, say, Ayn Rand in the 1950s in Atlas Shrugged—Rand, of course, who was originally Russia—or Murray Rothbard in For New Liberty and other works in the 1960s, 1970s, was the idea that the initiation of force, which we sometimes call aggression, is impermissible, but force in response to initiated force is permissible. So there’s nice symmetry there. That is, you’re permitted to use force if it’s in response to initiated force but you’re not permitted to initiate force—to use force in response to an action that is not itself force.

Now this formulation has become a little crusty and gotten criticized over the years because people are realizing—libertarians are realizing, and our critics are realizing—that you can’t really define what force or what the initiation of force is unless you have a predefined theory of property rights. The reason for this is that you need to be able to identify the owner of a resource before you can determine whether a given action is trespass or theft or not. If I snatch an apple from your hand, it is theft if you own the apple. If you just took the apple from me and it was my apple then it is not theft for me to use force to recapture my resource. So, really, the nonaggression principle, as libertarians tend to call it, is a shorthand or summary description of our property rights foundations. The ultimate foundation of libertarianism is the property rights foundation, the propertarian foundation, which I summarized earlier in the three basic rules [plus self-ownership].

So: we can justify propositions about causal laws, the laws of physics, the laws of chemistry. We would also have a reason to want to have a basis to justify propositions about norms, what people should and should not do, which social rules are permissible or justifiable or not. And most people have the same viewpoint. They do believe there’s a need to justify social norms, which is why there’s incessant argument about these norms among all human beings. They’ll say a given policy is justified, or not. People have this, or that, right. And often when they say there’s a human right to A, B, or C, like education, that’s a substitute for their normative presupposition or their normative argument. What they’re saying is I believe there is a human right to this for the following reasons. They don’t always specify the reasons.

The reason libertarians, I believe, are libertarians is because they have the innate sense of justice that most human beings do but they also have a stronger desire than most to be consistent. And they also have a little bit extra appreciation of the importance of economics. Just reading Henry Hazlitt’s Economics in One Lesson, a basic knowledge of the laws of supply and demand can make you appreciate the effects of some policies and realize that they won’t achieve your basic goals in the first place. So I think if you basically give someone a desire for consistency and a little economic literacy, combine that with their basic normal human valuing of decency, cooperation and prosperity, freedom, then they would basically become a libertarian. And the more consistent you are, the more radical the libertarian you would be. So maybe first you’re a minarchist. Then you’re an anarchist. Etcetera.

So let’s talk in the closing segment of this lecture about what bases libertarians have used to justify their libertarian approach. One would be pragmatic and variants of this would be called utilitarianism or even consequentialism. Now, as someone influenced by Ayn Rand and

As for Aristotle: I actually don’t believe, personally, that there’s a conflict between a principled—or, as some call it, deontological—approach to rights, and a practical or pragmatic approach to rights. I do think there are deep problems with utilitarianism but I think ultimately consequentialism, which is a view that appraises norms by the consequences they would have for human life and flourishing, I don’t think that’s in conflict with a principled approach to rights. As Ayn Rand said, “The practical is the moral”. And vice-versa: things are moral because they’re practical. But that doesn’t mean principles are unnecessary or useless.

Ultimately, my personal view is a principled belief in rights. Utilitarianism is flawed in several ways and I can only go into them here quickly. It’s flawed methodologically because, as Mises and other Austrians have shown, value is ordinal, not cardinal. That is, there is no numerical quantity attached to value. And also it is not interpersonally comparable. So if you justify a policy based upon utilitarian reasons, the argument is going to be flawed. And there are other problems with that as well which I discuss, by the way, in detail in my Against Intellectual Property monograph from 2001.

Now consequentialism, I think, makes more sense in a practical way. I would say utilitarianism is one subset of that but consequentialism, in general, is not in conflict with a principled approach to rights. The principled approach says that, as Robert Nozick put in Anarchy, State, and Utopia, there are “side constraints” on action. There are some things that you must not do—no matter what, basically. And there are good reasons for that.

So the question is what is the right approach and how do we justify it? Well, I think the approach most people have is to consult their own basic values which I would classify as “grundnorms.” This is a German term coined by Hans Kelsen, the legal theorist. Grundnorms are certain basic values like favoring peace over violence, if possible; social cooperation; prosperity of the human race and your neighbors and your countrymen and yourself. These basic values inform our analysis.

Now, when I was a young libertarian, I came to believe and I came to see that there were problems with the traditional arguments for the principled approach which, as I mentioned, it is called the deontological approach. That would be the natural rights approach of Ayn Rand and others.

What appealed to me was sort of a neo-natural rights approach of Hans-Hermann Hoppe, sort of a neo-Kantean approach which was adopted and endorsed by Murray Rothbard shortly before his death, after Hoppe introduced these ideas to libertarian theory in the mid-1980s. And what attracted me was that it’s highly rational; it appeals to reason. It appeals to consistency. Hoppe argued for this in his theory that he calls “argumentation ethics,” which he would say is an extension, an ethical extension, of praxeology, Mises’s logic of human action. Now Mises himself was a utilitarian of a sort or a consequentialist and probably would not have agreed with the idea that you could extend the laws of economics or the laws of human action into the realm of ethics. He was sort of an ethical skeptic in that regard. Nonetheless, he held the same grundnorms that I mentioned earlier: peace, prosperity, cooperation.

So Hoppe advanced his theory of argumentation ethics in the mid-1980s, probably starting around 1985 or 1986 after he moved to the U.S. to study with Murray Rothbard. Now Hoppe had been influenced by his PhD advisor and another German intellectual, Jürgen Habermas and Karl-Otto Apel, who were Social Democrat type European leftist socialists but who came up with this idea of “discourse ethics” which is the idea that any normative proposition that we want to try to justify is always advanced in the course of an actual discussion or discourse among human beings. And therefore, if there are any normative presuppositions of the discourse, then they have to be assumed as true by the discussants. In other words, you could never advance an argument for a norm that contradicts the normative presuppositions of the discourse itself.

Now this Hoppe seized upon and he combined it with his growing knowledge of Misesian praxeology and Rothbardian libertarianism and he reformulated it and incorporated it into his own social theory. His argument in brief is that any normative proposition would have to be advanced by participants in discourse. And these participants are necessarily respecting each other’s rights because an argument, or a discourse, is an attempt to persuade the other person of the validity of your claim, that is your propositional claim, without the use of force or coercion. That is, everyone is agreeing during the argument to “agree to disagree” if they have to. If you’re coercing someone to agree with you, that is not a genuine argument. Any genuine argument presupposes basically self-ownership of each party. Each person has to be free of coercion, has to own and control their own body. And, because, as Hoppe recognizes, argumentation is not just a logical affair but it is a practical affair carried on by real, living, acting beings in the real world in a world of scarcity, in a world of finiteness, in a world of limited resources—for the very activity to occur, there needs to be some ability of the participants to have controlled their destiny, to control resources in the world, to have homesteaded or acquired resources by contract.

So what Hoppe tries to point out is that the normative presuppositions of argument in general can never be disputed consistently by anyone in any kind of argument. And this is in a sense what his teachers, Habermas and Apel, call the “a priori of argumentation.” As Mises points out as a Kantian there’s an a priori realm of knowledge, things that we can’t dispute because to dispute them would lead us to contradiction.

This is ultimately what Hoppe seeks to prove in the field of norms or ethics. Now this theory, which I discuss in further detail in many writings, primarily my article “New Rationalist Directions in Libertarian Rights Theory,” I think it is from 1996 from the Journal of Libertarian Studies; and also I summarize this and related, more recent, discussion, like that by Frank Van Dun who has built on this theory, and others, in my article from a couple years ago, “A Concise Guide to Argumentation Ethics.” These are all on my website: stephankinsella.com, if people want to look into this further.

Now when I was in law school—and I’m going to try and wrap up in the next five minutes because this is getting on the 32 minute mark—when I was in law school, I read Hoppe’s work and it impressed me deeply. And at the same time I was learning about a common law doctrine called “estoppel.” And I instantly noticed some similarities in the style of argument there with what Hoppe was arguing. And so I came up with my own sort of complementary, related theory which I call estoppel. And estoppel is just an idea in the common law—and there is a related version in the civil law, the Roman law—which says that if someone has made a representation, like in a court case, or they have made a promise to someone that they relied upon or they have taken an action that someone has relied upon that inherently makes some kind of claim—then the person who made the statement is unable [not permitted] to contradict that statement later on. They are so-called “estopped,” or prevented, from making that statement. ⁸

And what appealed to me about that idea was the symmetry inherent in the libertarian notion, basically in the libertarian idea that force is permissible in response to force, but only in response to force. In other words, we’re against aggression in principle, unlike every other political philosophy out there which, in the end, ends up condoning aggression in some cases.

The libertarian adherence to symmetry and reciprocity made me instantly realize that estoppel is another way to understand why the libertarian view is the only one that can be justified. In an argument similar to the one Hans-Hermann Hoppe makes, what I argued was this. What occurred to me was the following, which I have written up in detail in the meantime. That is, an aggressor has endorsed the rule that aggression is legitimate because he is committing aggression. When he trespasses or harms another person, he is basically setting forth the rule, or as Kant would say, there is a maxim to his action. He’s basically saying that aggression is permissible or that it’s permissible to invade the borders of another person’s resource without their consent. That is the maxim of the action of an aggressor or a tortfeasor.

And therefore, when the victim attempts to use force in defense or in response—and by response I mean not just self-defense but also response after the fact to obtain retribution or restitution, so basically it’s an act of force by the victim or by the victim’s representatives in response to the aggressor and his act of aggression—then the aggressor has no grounds for complaint because he has foresworn the protection of the law. He has admitted he agrees with the rule “force is permissible.” “Invasion of others’ borders is permissible. “ So, in effect, he is estopped or prevented from complaining about the use of responsive force by the victim.

In my view, this is ultimately why the libertarian idea is justified. This is ultimately why symmetry and reciprocity matters. This is ultimately why the initiation of force cannot be justified, but the response to the initiation of force can be justified. They’re different. So this is ultimately the reason. So that is my “estoppel” argument. And in my longer article in the JLS, in 1996, and some other articles, I try to extend this and elaborate on this and extend it into the field of property theory in general, not just talking about human rights in our bodies but also to acquired or homesteaded resources which we call property rights.

That is kind of a nutshell or a summary or overview of the theory. In my “New Rationalist Directions in Libertarian Rights Theory” article I go over a third theory, which I’ll link in the notes for this, and I also have a collection of quotes from thinkers from recent times to times of antiquity which show glimmers of this basic idea. The idea that you cannot contradict yourself, that if you commit a rights violation, you take yourself out of the protection of the law. That if you want to live like an outlaw then you’re outside the protection of the law. If you act like an animal and you’re a threat to other people, then they’re entitled to treat you like an animal. All these ideas come down to the idea, this agreement type idea, this reciprocity idea, that I respect your rights and you respect mine. And if and to the extent you do not respect my rights then you are outside the protection of law. You can’t complain if someone uses force to defend themselves against your own violent actions, which is common sense and which is at the root of the libertarian idea.

So, in my view, the argumentation ethics approach of Hans-Hermann Hoppe, worked on by others in the ensuing decades, which, again, I collect in my “Concise Guide to Argumentation Ethics” article, my work on estoppel and the work of others in this area, is the most persuasive, intuitive and common sense justification for libertarian rights.

In the end, we all agree with rights because we agree to rights. That is, we communicate with each other. We tolerate each other. We respect each other. And when we do so, we render ourselves unable to meaningfully say that we don’t respect each other’s rights.

You basically have a choice as a human being in today’s world. You can join society and civilization and respect rights and then you can use the intellect to be more consistent about it and to understand the implications of that. Or you become an outlaw. And if you’re an outlaw, then you basically become what Hoppe refers to as a “mere technical problem” for others to deal with. ⁹ Just like human beings have to deal with the prospect of disease and mortality and accidents and nature and weather and dangerous animals, so the small minority of uncivilized, animal-like people who live among us who refuse to respect or recognize rights is, in the end, ultimately not a moral problem but a technical problem. But luckily for us, we deal with people that are fellow civilized human beings and the most civilized among us, in my view, become libertarians.

I will end my speech here. I appreciate your time and your interest. And I look forward to discoursing with any of you about any of these matters later. Thank you and good afternoon.

1. KOL108 | “Why ‘Intellectual Property’ is not Genuine Property,” Adam Smith Forum, Moscow (2011). [↩]
2. See:
   • KOL153 | “The Social Theory of Hoppe: Lecture 1: Property Foundations” (Mises Academy, 2011)
   • KOL018 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 1: Libertarian Basics: Rights and Law” (Mises Academy, 2011)
   • New Rationalist Directions in Libertarian Rights Theory
   • Argumentation Ethics and Liberty: A Concise Guide
   • Defending Argumentation Ethics: Reply to Murphy & Callahan
   • A Libertarian Theory of Punishment and Rights
   • How We Come To Own Ourselves

   [↩]

3. “Why Intellectual Property is not Genuine Property.” [↩]
4. See C4SIF.org. [↩]
5. Hoppe, A Theory of Socialism and Capitalism; A Realistic Libertarianism.  [↩]
6. Rothbard, Human Rights” As Property Rights . [↩]
7. For elaboration, see What Libertarianism Is and  The Limits of Libertarianism?: A Dissenting View. [↩]
8. See, e.g., Punishment and Proportionality: The Estoppel Approach; also Legislation and the Discovery of Law in a Free Society and “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010). [↩]
9. Hoppe on Treating Aggressors as Mere “Technical Problems”. [↩]