Areas That Need Development from Libertarian Thinkers

by Stephan Kinsella on January 18, 2022

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.

Update:

Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 25: “So the movement is about fifty or sixty years old. It’s a relatively young movement as far as ideologies and political philosophies go. We still have our disagreements over certain controversies like abortion and other issues. But a lot of progress has been made in the last fifty years. We’ve had a lot of development, partly because of incessant libertarian internal debate, criticism by outsiders, criticism by minarchists, criticism by insiders.”

Rothbard: “Introduction to the First Edition,” in Egalitarianism as a Revolt Against Nature, 2d ed. (2000), pp. xvi–xvii:

In my own particular case, the major focus of my interest and my writings over the last three decades has been a part of this broader approach—libertarianism—the discipline of liberty. For I have come to believe that libertarianism is indeed a discipline, a “science,” if you will, of its own, even though it has been only barely developed over the generations. Libertarianism is a new and emerging discipline which touches closely on many other areas of the study of human action: economics, philosophy, political theory, history, even—and not least—biology. For all of these provide in varying ways the groundwork, the elaboration, and the application of libertarianism. Some day, perhaps, liberty and “libertarian studies” will be recognized as an independent, though related, part of the academic curriculum.

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 (such as a computer, AI, robot, and so on) that wakes up and develops sentience or sapience, 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.
- See Hoppe’s example of a telephone that wakes up and can act on its own, thereby becoming a self-owner, mentioned in KOL004 | Interview with Walter Block on Voluntary Slavery and Inalienability:
  - WALTER BLOCK: Okay, so let’s say that the parents own the kid until he’s six months old.00:35:41
    STEPHAN KINSELLA: So there’s a transfer of ownership. It’s not like homesteading…
    
    00:35:43
    
    WALTER BLOCK: Yes.
    
    00:35:44
    
    STEPHAN KINSELLA: It’s more like a contract or something.
    
    00:35:46
    
    WALTER BLOCK: No, no, not a contract. He sort of takes control of his body before when he’s six months…
    
    00:35:50
    
    STEPHAN KINSELLA: Yes, because control matters. I agree. This is what matters. Control is what matters.
    
    00:35:54
    
    WALTER BLOCK: Yes, we agree on that. Control is the key, and the kid sort of gradually wakes up into self-awareness and self-ownership.
    
    [Aside by SK: See also the comments by Hans-Hermann “Hoppe in Hans-Hermann Hoppe on Abortion” (Youtube; Romania, 2011), around 6:00 to 9:00, regarding a telephone that wakes up and can act on its own, thereby becoming a self-owner. Here is a cleaned up (by Grok) version of that portion of the transcript:
    
    A key factor is whether a parasitic relationship exists. Biologically, a fetus is attached to the mother as a parasite until the umbilical cord is cut. Once born, this relationship ends. Children are not “produced” by parents in the same way we produce a refrigerator or a telephone. [Creation is not a source of property rights anyway; see Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”. —SK] Goods can be appropriated or naturally owned. I have direct control over my body, and every person has direct control only over their own body. I can influence another’s body indirectly, using my own, but parents do not have direct control over their child’s body. Direct control logically precedes indirect control. For example, I can will my arm to lift, but to lift your arm, I must physically move it. You alone can will your body to act in ways tied uniquely to you.
    
    7:46
    The argument that a child is a product of the parents, like a telephone is a product of its manufacturer, doesn’t hold. [Again, one does not own a telephone because one produces it, but because one already owned the factors that make it up, in an act of rearrangement. See Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; “Rand on IP, Owning ‘Values’, and ‘Rearrangement Rights,’”; . —SK] If a telephone, once produced, could suddenly act independently—say, making calls or answering them without intervention—we might consider it a rational entity, subject to the same reasoning we apply to humans. This analogy illustrates why children, even as products of their parents’ actions, are not owned like objects but have their own autonomy. ]
    
    00:36:00
    
    STEPHAN KINSELLA: I agree.
    
    00:36:01
    
    WALTER BLOCK: And when the kid is 3 years old…
    
    00:36:04
    
    STEPHAN KINSELLA: Yeah. I’m not debating on the transition and how we draw the line. What I’m saying is at a certain point he becomes the self-aware, sapient or sentient controller of that body.
    
    00:36:16
    
    WALTER BLOCK: And therefore owner that body.
    
    00:36:18
    
    STEPHAN KINSELLA: Yeah, but he’s the owner because he’s the controller, not because he’s the – not because he homesteaded it.
- Rothbard Graduate Seminar, 2002:
  - I.e., in the case of appropriated scarce resources, one has the right to control (ownership), but also the right to abandon— “in favor of” another. Therefore, ownership of acquired resources also includes the right to alienate title.
  - But this reasoning does not apply to our bodies.
  - This is why slavery contracts are unenforceable; it simply makes no sense to speak of abandoning one’s body, since we do not “acquire title” to our bodies by finding some unowned scarce resource and then appropriating it from the state of nature. Enforcing a slavery contract is simply aggression, because it is using force against a non-aggressor (signing a piece of paper is not aggression).
  - {?? use baby o/s example to show flaw in thinking bodies are property in exact same manner as homesteaded property. What if Internet wakes up???}
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”….
Abandonment:
- Homesteading, Abandonment, and Unowned Land in the Civil Law (Mises Blog, 2009) (Aug. 28, 2021)
- Inability to Abandon Property in the Civil Law (Aug. 3, 2009)
- Left-Libertarians on Rothbardian Abandonment, Mises Blog (Aug. 22, 2009)
- Libertarian Answer Man: Abandoning Property on your curb for the trash