“Libertarians & the Religious Right: an Interview with Stephan Kinsella,” by Alberto Mingardi (1999)

“As far as libertarianism goes,” says Kinsella about himself, “I am most interested in rights theory, about which I have written in law reviews and other journals like Reason Papers and the Journal of Libertarian Studies, and law and economics. I have attempted to develop a framework justifying and grounding rights, which is based on the legal concept of ‘estoppel’.”

Stephan Kinsella received his LL.M. in international business law from King’s College London, in 1992, and now practices intellectual property law with Duane, Morris & Heckscher LLP, in Houston, Texas. He also teaches computer law at South Texas College of Law affiliated with Texas A&M; University.

If we have to divide libertarians into different types, what sort of libertarian is Professor Stephan Kinsella?

There are several ways to classify libertarians: according to the “strictness” of their beliefs (which range from anarcho-capitalism to advocates of limited government, or minarchists), or according to the basis for their beliefs (natural law, utilitarian, and so on). I consider myself a culturaly conservative advocate of anarcho-capitalism. My view of rights can be viewed as falling under the “natural rights” umbrella, but with a decidedly “Kantian” or rationalist influence [from] Hans-Hermann Hoppe, as well as certain aspects of the thought of Ayn Rand, Murray Rothbard, and Ludwig von Mises (his epistemology, primarily, not his utilitarianism).

How did you start thinking of yourself as a libertarian?

As a teenager, I was always very culturally conservative but fairly ignorant of the whole realm of politics. I was also a fan of science and reason. When I was about 16 years old a librarian at my high school (ironically, a Catholic high school) recommended Ayn Rand’s The Fountainhead, which led me to read more of her works, including her non-fiction on capitalism and selfishness. I very quickly identified myself as a “capitalist” and advocate of reason along Randian lines. I was–and remain–much more enamored of the “moral” rather than “practical” advantages of capitalism: that it is the system that protects individual rights and thus the most moral. That it also produces the most goods and the like is perhaps inevitable, but for me a secondary benefit.

However, I initially believed Rand’s mis-characterization of the non-Objectivist libertarian movement as an “enemy of capitalism”, and thus avoided local Libertarians, writings of Rothbard etc. Eventually, in my first years of college, I began to read LP literature, economics by Henry Hazlitt, Murray Rothbard, Ludwig von Mises, Frederic Bastiat, and Milton Friedman. At that time I realized that the “libertarians” were also virtually identical in their support of individual rights and free markets as were the Objectivists.

When I was in law school, I learned of the concept of “estoppel”, a widely-used legal doctrine that comes up in many fields, including contract law. The basic idea of estoppel is that a person is “estopped” (or “stopped”, prevented, or precluded), from asserting a defense in court, if such a defense contradicts other actions or statements made by the person previously, upon which another relied to his detriment. That is, words and actions must be consistent in some contexts; you have to “practice what you preach”.

I realized at the time that such an approach may complement what most attracted me about libertarianism: the basic, intuitive justice behind the non-aggression axiom or principle. Under this principle, one is entitled to use force only in response to the initiation of force. There is a reciprocity or symmetry here: force only in response to force. If force (law) is in response to non-force, the law is unjustified. That is the basic libertarian idea. It seemed to me–and still does– that this intuitive notion of justice can be justified by employing the estoppel paradigm. Thus, I would say that an aggressor, who has used force, is “estopped” from complaining about being later punished for his crime. He cannot urge a defense that “force is wrong” since he clearly demonstrated by his earlier act of aggression that he does not believe force is wrong. Thus, because he cannot object to the punishment, the punishment can be said to be justified. This means, ultimately, that the purported right which the punishment back up or en-forces, is grounded as an actual right. Following this plan, one can show that only aggressive acts violate rights, and that non-aggression does not violate rights. Thus, the only rights one has are rights against the initiation of force.

See my articles:

“A Libertarian Theory of Punishment and Rights,” 30 Loyola of Los Angeles Law Review, v. 30 (1997): 607-45.

“New Rationalist Directions in Libertarian Rights Theory,” 12:2 J. Libertarian Studies 313-26 (Fall 1996).

A little about the Libertarian Party. Viewed outside America, the LP’s situation appears strange. Of course, Americans provide maybe the most fertile soil for libertarian ideas in the world (Europe is drugged by statism in her soul). But the winning platforms among the Republican Party were made in fact by libertarian elements. The new governor of Minnesota, Jesse Ventura, also won with an anti-tax program along with a libertarian-leaning perspective on civil issues. But the LP elected only a few persons in Indiana and Vermont. Was Ayn Rand right when she said back in the 1970s: “It’s too soon for a Libertarian Party”?

I am not personally active in the LP, although I usually vote–if I vote–for LP candidates. The problem is essentially education. Until the mass public agrees to respect one anothers’ rights, we will have socialism to one degree or another. How to educate is another issue, but I do not believe the LP is the most efficient way. It seems to me that educating by example is the most successful: the example of a relatively prosperous country (e.g., America) which has used capitalism; the example of decent individuals who work hard, live clean, and espouse individualism. I believe that economic education is the most important type of education, because most people, even if somewhat altruistic and anti- individualist, are mostly decent and pragmatic, and would support freedom if they realized it would by and large lead to good results.

Once mainstream views start changing, the Republicans and even Democrats will likely shift ground to capture votes, so even then it would seem to me that a LP will always be marginalized.

The problem of ‘education’. If the situation is so hard for libertarian ideas in a country like the US, in which capitalism was part of the koine, or common language, you can imagine what sort of waste land for liberties Europe is. What are the principal libertarian resources? What are the ways to turn younger people on to libertarianism?

I believe that the principal libertarian resources are primarily two things: the examples set by our best practitioners, and the corpus of economic and political writing–especially economic–that has developed over the last century or so in support of liberty. By the former I mean the idea–promoted by Leonard Read of the Foundation for Economic Education–that one should attempt to live one’s life as best one can, and by the magnetism of the success one has–one’s economic and professional success, compassion, eloquence, intelligence, and the like–one will likely influence many of the people one comes into contact with. Most people are basically decent and even if they are not 100% libertarian in their intuitions, most people would, most of the time, support libertarian institutions if only they understood economics. Thus I believe basic economic education to be among the most important.

I lived in London for a year in 1991-92 and have visited many places in Europe, and I agree that the entire culture and background ideas accepted by the people are very much steeped with socialist ideas. Socialized medicine is one good example of that: Europeans seem to be so used to this idea that all but the most die-hard libertarians are in favor of it. So I agree that it will be more difficult in Europe to move in a direction of liberty.

Substantial progress in the direction of liberty is not possible until most of our fellow men favor liberty. Perhaps this is an impossible goal. I do not mean to be pessimistic, but it could be that for some reason–economic, sociological, biological–the human race is doomed to remain mired forever in some form of statism. In that case, and in any event, all one can do is attempt to live one’s life as best one can within the confines of the existing system.

To be a libertarian does not mean that one believes liberty will actually be achieved, just as being opposed to murder does not mean one believes no one will ever be murdered. Rather, to be a libertarian means one is interested in and understands liberty, and is in favor of it, and voluntarily respects the rules it teaches in living his own life. It does not necessarily mean that one must be an advocate or propagandist. I do not see the mission of libertarians as trying to find ways to “convert” college students or even to educate others, although if one is interested in that, that seems to be a pretty good thing to do with one’s time. But a libertarian may spend 98% of his time on his career, family, friends, and hobbies, and rarely be involved with protests or writing or arguing with others. He understands and respects liberty, and wishes there were more of it, and then goes about his life. He either thinks it is futile to try to waste time trying to change the system, or that his miniscule contribution is not worth the effort.

As for the corpus of literature, it includes the magazines, the periodicals, the conferences put on by free market institutes, and so forth. But most important are the key books that can enlighten young minds. I believe that among the most important and influential introductory works are Ayn Rand’s writings, Murray Rothbard’s For a New Liberty, Frederic Bastiat’s The Law, Henry Hazlitt’s Economics in One Lesson, Milton Friedman’s Free to Choose and Capitalism & Freedom, and others along these lines.

I think that ultimately the only chance we have is if we somehow are able to convince the bulk of our fellow man to favor more liberty. Maybe this will happen, maybe it will not. I see some movement in that direction simply because of a sort of growing background awareness over the past decade of the efficacy of capitalism and the inefficacy of socialism. People are becoming more sophisticated about some economic principles, if only because of the spectacular example of the Soviet Union’s collapse. Other than that, one can work for getting government out of the education business, which would also help to produce more libertarians, simply by not propagandizing citizens in a pro-statist direction in the first place, which is what happens in publicly-funded/controlled schools. One can also give of one’s time or money to groups that educate or publish books on liberty. Other than that I do not know what we can do, at least until space colonization becomes a real option and a bunch of libertarians go out and set up Atlantis somewhere.

You have omitted my three favourite libertarian classics, namely, Machinery of Freedom (the book that had turned me on to libertarianism when I was 15), Defending the Undefendable, and Ethics of Liberty. But the question . . . For a lot of libertarians, Milton Friedman is not a libertarian, though perhaps a classical liberal. The same with Hayek. What’s your position on who is libertarian?

Well, I was mentioning who my influences were. From a vacuum Friedman does appear to be a libertarian, and offers quite refreshing ideas. I suppose I would be tolerant enough to draw libertarianism’s boundaries fuzzily enough to include, at the edge, soft minarchists like Friedman. Personally I’m an anarcho-capitalist, but willing to consider even some minarchists to be intellectual brethren.

I’d say that anyone who advocates individual rights and limited government, from a principled, coherent viewpoint, is a libertarian. The more anarcho-capitalist, the more consistent or “pure” a libertarian he is.

As for the three books you mentioned, I guess I should have also mentioned David Friedman. His Machinery of Freedom is great, I agree, although I have some problems with his utilitarianism and positivism. I loved Ethics of Liberty, but I suppose I considered that more advanced and did not include it in the group of books to educate more neophytes; although, now you mention it, I would also include it. There are several others I adore and admire, but are too advanced for educating the non-libertarian, like those by Hoppe and Mises’ Human Action and other works. Walter Block is a giant and I tend to agree with him more than I do with most, but Defending the Undefendable did not help to win me over, as I read it way after I had already been convinced of most of the points he makes. Similarly, I have met libertarians who claim to have learned from Leonard Read, which perplexes me as when I read his stuff I immediately forget it: it’s like generic, grandfatherly advice. I suppose there are many paths to truth.

Libertarianism and secession: the right to secede viewed by Stephan Kinsella?

As an anarcho-capitalist, I believe in the right to secession down to the smallest level, the individual. Even if one is simply a minarchist, the idea of secession should not be that repulsive, since it complements nicely the idea of decentralization. Decentralization is one of the key constitutional or systemic features that can help limit the ability of a central government to tyrannize its citizens. In the U.S. we attempted to set up a “confederation” and it has not quite worked. Ideally the 50 U.S. states would provide more of a limit on federal government growth and actions, and would if the original Constitution had been respected more. But to the extent there is decentralization of political power, I believe citizens are better off.

That is why I disagree with naive libertarians in the U.S. who go around claiming that the Bill of Rights–the first 10 Amendments to the U.S. Constitution–apply to the states. I do not completely endorse efforts like those of the Institute for Justice to sue states, on behalf of individuals, in federal court to have the federal government overturn certain noxious state laws on the grounds that they violate the Bill of Rights. The original Bill of Rights applied only to the federal government. For example, the First Amendment says that “Congress shall make no laws” restricting freedom of speech, press, and religion. For the first 100 or so years of America’s existence, it was not unconstitutional for a state to enact a law censoring speech or establishing a state religion. It may have violated the state’s own constitution, but not the federal constitution. As a libertarian I have no problem with this, just as I have no problem saying that Ghana’s laws are anti-libertarian but that I also oppose Ghana being invaded by Egypt to fix this problem. If you hand over power and jurisdiction to a higher up, more centralized government entity, to remedy rights abuses at a lower level, you end up worse off since the ultimate danger is power in the government’s hands. Better to leave that power exercised locally and in a decentralized fashion.

So it seems to me that libertarians of all stripes–anarchists and minarchists–should favor decentralization, and the right to secede can complement this nicely.

You’re involved in The Mises Institute. I’ve heard that some of Mises’ scholars are close to Pat Buchanan and the Religious Right. What are the reasons for this choice (if what I’ve heard is right)?

First off, I do not believe the religious right is as bad as many libertarians and liberals (in the US sense) say it is. The typical libertarian paradigm is the “Nolan Chart”, the two-dimensional chart having economic liberties on one axis and personal liberties on another. The argument is that conservatives favor economic but not personal liberties, and liberals vice-versa. Totalitarians don’t like either one and libertarians favor both. The problem I have with this is that it seems that leftists/liberals are worse on both axes than are conservatives. Conservatives seem to be much better on economic liberties than leftists, and better even on personal liberties. For example, leftists are nowadays advocating censorship in various forms: regulations of “commercial speech” (advertising), campus speech codes, anti- discrimination and hate-crime laws that effectively impose penalties on those advocating certain ideas or saying certain things.

So I believe that conservatives are closer to libertarians on both axes. The claim that conservatives want to “enforce their own morality” on us is also exaggerated, and again the leftists are worse in this area. To pose a true danger conservatives and the religious right would have to advocate outright theocracy, which almost none of them do. Instead they merely want prayer in public schools and abortion outlawed. The former is minor and the latter is subject to debate even among non- religious libertarians.

Rothbard veered away from the U.S. Libertarian Party in later years in part because it seems to attract a large number of libertines–people whose lifestyles are hippie-ish, counterculture, the drug culture, and the like. It is understandable why a marginal political group would not draw the “best and brightest” political candidates or leaders, but that does not change the fact. Rothbard emphasized the practical fact that traditional morality is attacked by the state and that we are not aided in our quest for liberty by allying ourselves with the dregs of humanity. Certainly, a person has a right to be an unwashed, dope-smoking hippie with VD and kids in 7 states by 8 different women, but is it really in one’s interest to associate with such people–just because they are also libertarians? Just as some have a right to be libertine, others have the right to not associate with them and to work for liberty with other people of their own choosing.

So in latter years Rothbard and also, apparently, the Mises Institute became disenchanted with the LP and the “official” libertarian movement, which they viewed as more libertine and not culturally conservative. Buchanan at first seemed to promote a worthwhile message, but this was before he started focusing on trade wars and the like. As for the accusations that Bucahanan is anti-Semite, racist, and the like, I think that is all nonsense. Nowadays, if someone is accused of being racist or anti-Semitic, my first assumption is that he is not, and that he is probably a good guy whose words are being distorted by the left because he hit on the truth which outraged them. For example if one opposes welfare or anti-discrimination laws or foreign aid to Israel one can be labeled racist or anti-semitic, which is ridiculous.

The Mises Institute is run by Lew Rockwell, one of the finest individuals and libertarians I have ever had the pleasure to know. He is a tireless, devoted, and principled advocate of liberty. The smears I have heard of him by people at other think tanks, like Cato, are unbelievable. One reason I am glad I am a practicing lawyer and only a libertarian intellectual “on the side” is that I am fairly immune from these silly, petty battles that academics tend to get engaged in.

Finally, a question to the lawyer. You may know of an important thinker from my own country, Bruno Leoni, the author of Freedom and the Law. Has he had an influence on you? And – more generally – what was his influence on modern classical liberalism and libertarianism?

I have devoured Freedom and the Law by Leoni. He was a great thinker unfortunately too short-lived. I leaned heavily on his book in an article of mine in the Journal of Libertarian Studies on legislation and liberty [“Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies, v. 11 (Summer 1995): 132]. Most of all, I leaned on his analogy between the Hayekian “knowledge problem” of economic central planning and legislation, to bolster my arguments opposing legislated law and in favor of court-made (decentralized) law. However, I am somewhat unsure now of the soundness of that analogy, given the recent fascinating debate in the Review of Austrian Economics between, on the one hand, economists like Rothbard, Salerno, Herbener, Hoppe, and others like Yeager et al., regarding whether the central problem of socialism is one of knowledge or calculation.

I come from the only civil-law jurisdiction in the U.S., Louisiana. I was initially enamored of the civil law and thus was attracted to legislation-dominant schemes as opposed to the common law. Eventually I came to oppose centralized legislation and to favor a more decentralized way of making law, more along the lines of the common law or original Roman law, or, ideally, private law developed in private courts (arbitral tribunals). That Leoni was able to oppose legislated law in a society–Italy–so steeped in the civil law, is truly impressive. I believe there are some flaws in the analogy between the problem of socialism and the problem faced by legislators, and I wish he had lived longer to think and write further on these and other issues.

Unfortunately, Leoni is not nearly as well known as he should be over here or in current libertarian thinking. For example, the recent book by Randy Barnett, The Structure of Liberty, is, to my knowledge, the first full-scale, comprehensive legal treatise from a consistently libertarian perspective. It is a significant, very important work (see http://www.bu.edu/rbarnett/SOL.htm). He even delves deeply into the knowledge problem, yet nowhere cites or discusses Leoni.