Kinsella’s Sixth Epiphany: Means and Knowledge

I’m here in Positano, at the beautiful Villa TreVille, on the last leg of the longest vacation of my life so far (July 1-20: Venice, Capri, Positano, Berlin). And this morning, here in Positano, walking down the steps from our room to the terrace to lounge, I had my sixth epiphany. Or so.

First, there were two fairly minor and personal ephanies.

1. Hell/Jesus/Religion: First: at age 15 or so when riding the Gravely tractor/lawnmower, mowing our 3-4 acre tract. As a pretty devout Catholic schoolboy and former altar boy, I was thinking hard about religion and the world around this time. It had already occurred to me that if God condemns you to eternal damnation as punishment for some sins committed while mortal, this can’t be just. An infinite punishment is disproportionate for a finite amount of crime. So, I reasoned, there cannot be hell. Therefore not evertyhing the Catholics teach is right. So what else might be false? Then I dared to question the idea of Jesus, and of God, and it all crumbled. My epiphany was in the realization that I could dare not only to question Hell but the whole Catholic story about Jesus.

2. Racism. Another epiphany around the same time, at age 15 or so: when I realized racism is some kind of wicked, false consciousness. Being raised in south Louisiana, let’s just say that I’d seen racism of various degrees expressed more than a couple times. I started thinking about it and started realizing how horrible it is. I consciously decided to reject it.

3. Estoppel and Rights. Then in law school I had my third epiphany, about estoppel and rights. See The Genesis of Estoppel: My Libertarian Rights Theory. I was in contracts class and upon hearing about the legal concept of estoppel, I had an aha! moment in class where I realized the logic behind the notion of estoppel could be used to support the symmetry behind the libertarian non-aggression principle—that force is justifed only in response to force, and therefore the initiation of force could never be justified. And that the reason it is permissible to use force in response to initiated force is that the aggressor is estopped from objecting to being retaliated against (since by his earlier act of aggression he has endorsed the use of force); and that the reason why we can say aggression is unjustified is precisely because the aggressor is estopped from objecting to responsive force used against him.

4. The Lost Epiphany. I had a fourth epiphany one night when I was dozing off to sleep and thought about writing it down, but decided to wait till the next morning. Alas, like Oliver Wendell Holmes Sr. who kept forgetting the secrets to the universe that he thought he discovered while high on ether, by the next morning I’d forgotten what it was. I believe it was some insight into the nature of libertarian rights, and I’ve been trying to remember it for perhaps twenty years, but with no success. Alas.

5. IP Abolitionism. My fifth epiphany came at the end of a multi-year search for a justification for intellectual property. I kept failing to find or come up with good arguments for IP; they were all flawed. Finally it dawned on me that the reason I was failing was that…. IP was in fact illegitimate and unjustifiable. Once I realized that the scales fell from my eyes and everything started making more sense. Figuring out why IP was unjust helped me better understand basic libertarian theory and property rights.

6. Means and Knowledge. And that finally led to my sixth epiphany, which I had today in Positano, while walking down the steps to the lawnchairs: means and knowledge. These two things are key to understanding praxeology, human progress, IP, and property rights. I already sorta knew this—in many articles I discuss the idea that successful human action requires access to scarce means or resources ¹ (to use them to make changes to the world) and knowledge to guide one’s use of these resources. But it came to me today finally how important this pairing is, and that a succinct, concise way to allude to this is means and knowledge. All human action requires both means, and knowledge; and knowledge is the real key to human progress; and only scarce means are the subject of property rights, not knowledge, therefore IP rights are destructive to human life and prosperity. ²

To elaborate on this issue:

Hayek, from The Constitution of Liberty:

“The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the uses of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted.

Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow…” ³

And crucially: “hayek “civilization begins when the individual in pursuit of his ends can make use of more knowledge than he himself has acquired”

See also Hayek’s comments about how the accumulation of a “fund of experience” helps aid human progress and the creation of wealth. See Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society, note 59:

“For elaboration, see Kinsella, “Hayek’s Views on Intellectual Property,” C4SIF Blog (Aug. 2, 2013) and “Intellectual Property and the Structure of Human Action,” discussing Hayek’s comments about how the accumulation of a “fund of experience” helps aid human progress and the creation of wealth. See also Kinsella, “Tucker, ‘Knowledge Is as Valuable as Physical Capital,’” C4SIF Blog (March 27, 2017) and George Reisman, “Progress In a Free Economy,” The Freeman (July 1, 1980). See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 84 et seq., discussing the importance of technical progress (not to be confused with patents) to economic growth. Cole cites several studies in n.12.”

See also LFFS, “Goods, Scarce and Nonscarce,” at n.24 and accompanying text.

and Bastiat:

Thanks to its action every productive force, every improved technique, every advantage, in a word, other than one’s own labor, slips through the hands of its producer, remaining there only long enough to excite his zeal with a brief taste of exceptional returns, and then moves on ultimately to swell the gratuitous and common heritage of all mankind. All these discoveries and advantages are diffused into larger and larger portions of individual satisfactions, which are more and more equally distributed. Such is the action of competition.

Quoted here.

Hoppe: “From the Malthusian Trap to the Industrial Revolution. Reflections on Social Evolution” (Property and Freedom Society 2009). also  Hoppe,“From the Malthusian Trap to the Industrial Revolution: An Explanation of Social Evolution,” ch. 4 in The Great Fiction.

“Intellectual Freedom and Learning Versus Patent and Copyright,” The Libertarian Standard.

Update:

7. [Feb. 27, 2024] On Disputes, Discourse, and Property Rights. I observed previously that when we ask what “counts” as sufficient homesteading, the very nature of the thing in dispute helps answer this question. As I wrote previously:

“Often the question is asked as to what types of acts constitute or are sufficient for homesteading (or “embordering” as Hoppe sometimes refers to it); what type of “labor” must be “mixed with” a thing; and to what property does the homesteading extend? What “counts” as “sufficient” homesteading? We can see that the answer to these questions is related to the issue of what is the thing in dispute. In other words, if B claims ownership of a thing possessed (or formerly possessed) by A, then the very framing of the dispute helps to identify what the thing is in dispute, and what counts as possession of it. If B claims ownership of a given resource, he wants the right to control it, to a certain extent, and according to its nature. Then the question becomes, did someone else previously control “it” (whatever is in dispute), according to its nature; i.e., did someone else already homestead it, so that B is only a latecomer? This ties in with de Jasay’s “let exclusion stand” principle, which rests on the idea that if someone is actually able to control a resource such that others are excluded, then this exclusion should “stand.” Of course, the physical nature of a given scarce resource and the way in which humans use such resources will determine the nature of actions needed to “control” it and exclude others.”

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), p. 25 n.34; see also p. 373 n.42 & p. 636, text accompanying n.39. I recently came across some similar reasoning in a forthcoming article by Swiss attorney and legal theorest David Dürr, where he writes (see esp. the bolded part):

The title of my habilitation thesis (translated from German) was “Discursive Law—Theoretical Foundation of Legal Interference on Social Conflicts.” By “Discursive Law” I meant law emerging out of the discourse of the conflict itself, i.e. out of the physical collision of bodies and other things, and not out of theoretical discussions about how the world should be.

By “Social Conflicts” I meant conflicts not between individuals or other typical private law parties such as companies, families etc., but between broader and less clearly de­fined entities such as neighborhoods, broad interest groups or other subparts of soci­ety. My focus was on constellations that are often dealt with as “politi­cal” or “social” conflicts that go beyond individual parties. I thought of normative articulations such as protecting the environment, distributing real estate in a just way, strengthening the consum­ers, helping weak members of society or granting law and order.

Such articulations typically collide with contrary positions, which are no less abstract and open, such as advocacy of economic freedom, of stable property rights, of auton­omy of the family or of the right to be left in peace. Nevertheless, these are conflicts though not between A and B or between group X and organization Y. It seemed to me that here there are not parties engaging in such conflicts but instead conflicts creat­ing their parties; not preexisting holders of rights and obligations but collisions out of which something like normative sub­jectivity emerges.

Why was and is this interesting? For three reasons:

First, because it makes it plausible that mutual interdependence between conflict and subjectivity is a pattern applicable not only to those broad “political” conflicts but also to any conflict including the typical private law dispute between A and B. There is a functional connection between physical incompatibility and its subjec­tive articulation, between conflict and argumentation, or—as Hans-Hermann Hoppe insists on a fundamental level—between reality and rationality.

The second reason for this being interesting is this: Those broad “political” posi­tions are so open and so general in scope, that it seems impossible to subsume them under an even more general rule. One usually says that neither side is right nor wrong but that there is no higher rule at hand—such as Kelsen’s flopped “Grundnorm”—to be applied on such a broad conflict; all we have is the conflict as such. In political practice this means that a decision is made by democratic ma­jority vote, authoritative order or other totalitarian means.

However, we know from the first reason just presented that the conflict itself pro­vides answers about how to solve the conflict: it allows the emergence of mutual subjectivities that become the articulators of argumentation accompanying the conflict into the direction of its solution.

And can be seen in a long quote in my notes for original version of ch. 14, Law and Intellectual Property in a Stateless Society, a similar point is made by Pollock in Maine, Ancient Law, to-wit,

In case of dispute whether possession has been established, we must resort to the rule of common sense, which is expressly adopted by the authorities of the Common Law, and does not contradict anything in the Roman Law, namely that regard must be had to the kind of use and control of which the subject-matter is capable.

Now often in my writing about property rights and IP I explain that the function and nature and purpose of property rights is to prevent conflict over the use of the scarce means of action—that is, scarce or “conflictable” resources. And this is why IP rights are invalid. Some people dispute that property arises because of conflict, but from the above reasoning we can see that dispute—plus discourse—in fact is the basis of property rights since it is in a discourse about a dispute where the very contours of property rights are fleshed out and defined. In other words, just as values are subjective but are identifiable by being demonstrated in action, via the notion of demonstrated preference, so property rights as a concept, as well as the particular contours of a given real, concrete, actual property right of an actual person/actor in the real world, always are tied back to the potential for conflict, or dispute.

I can see the Randians hating this. Just as they hate the argument for animal rights based on the notion of pain, because after all “the ability to suffer pain” is not the basis of rights, they say. Likewise they would balk at the notion that conflict and dispute is the “source” of property rights; rather, it is production, and creation of “values” blah blah blah. Yet I am not saying dispute is the source of rights. What I am saying is that property rights emerge as a response to the problem of conflict and dispute, and it is only discursive dispute resolution—and let us not forget that discourse presupposes reason—that can flesh out the contours of actual property rights in the real world.

1. See e.g.“Intellectual Freedom and Learning Versus Patent and Copyright,” The Libertarian Standard. [↩]
2. Update: For more on this, see “Against Intellectual Property After Twenty Years,” in Legal Foundations of a Free Society, Part IV.E, “The Separate Roles of Knowledge and Means in Action”; also the section “The Structure of Human Action: Means and Ends” in Kinsella, “Intellectual Freedom and Learning versus Patent and Copyright,” Economic Notes No. 113 (Libertarian Alliance, Jan. 18, 2011); idem, “Intellectual Property and the Structure of Human Action,” Mises Economics Blog (Jan. 6, 2010); and idem, “Ideas Are Free: The Case Against Intellectual Property,” Mises Daily (Nov. 23, 2010).  [↩]
3. See my post Tucker, “Knowledge Is as Valuable as Physical Capital.” [↩]