Areas That Need Development from Libertarian Thinkers

[From my Webnote series]

I tweeted: “One area that has not received much attention by libertarian theorists, that I know of, is bankruptcy. Still work to do!”

Someone asked me: “Do you have more topics without much attention from libertarian thinkers?”

My reply:

Yeah and I need to collect them.

But here are a few, off the top of my head.

Young scholars, take heed!

This list still be supplemented from time to time.

• Bankruptcy: On Bankruptcy in a Free Society
• Negotiability—for checks, commercial paper. I’ve long been troubled by this legal doctrine. See this Grok discussion. The more I think about it, the doctrine is probably justified: the issuer or maker of the instrument (e.g., the drawer of a check) is aware that it might be circulated to third parties (holders or bearers of the check) who could use the instruction to withdraw cash from the drawer’s bank account. The drawer has, in effect, voluntarily renounced her ability prevent the payment of the original payee by raising defenses such as fraud or breach of contract. (Perhaps one impetus for the doctrine of negotiability is to make a fractional-reserve system more feasible—so that promissory notes (IOUs) issued by fraudulent-reserve banks can circulate more easily and thus serve as money substitutes so as to allow the FRB pyramidding/inflation to occur… and this concerns me, but… you got to go where the logic takes you and not be results-oriented.) But I am maybe the only libertarian who might care about this since not many people understand the legal doctrine of negotiability as well as the title-transfer theory of contract. Oh, well.
• How to privatize state-owned resources. There have been various proposals but they are all over the map and not systematic.
  • Hoppe, De-Socialization in a United Germany, RAE (Vol. 5 Num. 2)
    • N.b. Danny Sanchez FB post arguing Hoppe, in Democracy: The God That Failed, ch.8, p. n.10, opposes Block’s proposal for privatization in Block, A Libertarian Case for Free Immigration (1998)
  • Partial restitution implied in Kinsella, A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders
• a careful delineation of the difference between the juristic and economic realms of phenomenon. I am starting to do this haltingly.
  • Bohm-Bawerk touched on this in ch. II of Shorter Classics: “WHETHER LEGAL RIGHTS AND RELATIONSHIPS ARE ECONOMIC GOODS”
  • Kinsella, Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023), “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” pp. 279–81, “On Libertarian Legal Theory, Self-Ownership and Drug Laws,” p. 640; and distinguishing juristic from economic phenomenon, see idem, “The Title-Transfer Theory of Contract” (“contract law may be considered to be the legal analogue or normative support for the economic institution of exchange”), and On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession
• Libertarian law/law codes: Yet another would be a close evaluation of the body of modern private law from the common law, and Roman/continental tradition—namely, the US/English common law, and the modern civil codes (e.g., the Louisiana Civil Code), to identify which parts are libertarian and which are clearly not. This would be sort of futile and a waste of time, but it might be of interest to some. It would require lots of effort, but only by someone who knows serious Austro-libertarian theory and law and legal theory—that is, a very good lawyer (and preferably one who knows both common law and continental/European law, plus international law), who is also knowledgeable in legal theory/jurisprudence, and Austro-libertarian theory. In short, someone like me—and there are only so many of us in the world who would be competent.
  • Kinsella, Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities
• Yet another would be to draft a systematic, but concise, codification of libertarian principles. I am sort of working on that. Kinsella, Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities
• Ownership of mechanical hardware that wakes up and develops sentience, i.e., artificial intelligence; I think the right approach is close to how infants acquire self-ownership, as outlined in How We Come To Own Ourselves.
• Unifying law. Another would be: a careful theoretical treatment of how to best unify the law/legal theory: in the past some have said criminal law would go away and all would collapse into contract or private or tort law. I tend to think it might be the opposite: everything collapses into criminal law, since all property rights, in the end, are enforceable, or redressable, with force, and that requires criminal law concepts and principles. But this would be another serious undertaking.
• Strict liability versus other standards. I have been leery of libertarians’ assumptions about strict liability since it sometimes implies someone is automatically responsible if property they own is used to or somehow harms others. I am leery of this since property rights are rights to use (technically: the right to exclude others), not responsibilities.
  • LFFS, ch. 15, n.74; also—
  • “The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld,” Mises Economics Blog (Sep. 1, 2009); “A Libertarian Theory of Punishment and Rights” (ch. 5), at n.78; “Causation and Aggression” (ch. 8), at n.60; and LFFS, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” (ch. 9), n.6
• The nature of fraud and why it’s a rights violation. I have done some work on this, but only a beginning…
  • See LFFS, ch. 9, Part III.E; also Fraud, Restitution, and Retaliation: The Libertarian Approach and The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression.
• Credit and the Title-Transfer Theory of Contract. Re a discussion of whether and how credit would work in a future sound-money world and libertarian society, re Saifedean Ammous’s views about the reduced role of credit in a bitcoin world:
  • From Gil Guillory: “I think a worthwhile study/paper/book would be to recap MES-style classical distribution theory aka the returns to the 3 factors of production in the ERE and then introduce credit as a factor (this must be done very carefully, if possible at all) and describe how that affects the returns to the factors, and then what higher and lower amounts of credit/leverage affects those returns, and then also how fiat currency and monetary manipulation affects the returns to these factors. I don’t really know if it’s possible to do this, but it would be amazing if possible to add credit to the 3-factor model and look at these things..
  • Kinsella: I agree with you, but I fear this would only be worth doing by someone deeply familiar with my entire working of the TTTC (“The Title-Transfer Theory of Contract”), as well as this MES material, and I am not sure who that person would be. It’s not me for sure, I only know part 1 very well. There could be a few young Austrian Econ bucks who know part 2 very well but not sure there are any who also happen to know part 1. but I may add this to my list of “suggestions for others”….