On Conflictability and Conflictable Resources

[Note: this topic is also discussed in “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society (Papinian Press, forthcoming 2023), Part III; also in “What Libertarianism Is,” in LFFS, p. 33.

See also “Goods, Scarce and Nonscarce,” in LFFS:

“Instead, the term scarcity here refers to the possible existence of conflict over the possession of a finite thing. It means that a condition of contestable control exists for anything that cannot be simultaneously owned: my ownership and control excludes your control.”

See also “Good Ideas is Pretty Scarce”]

It’s been my impression that usually, when some author coins a bunch of new terms, or over-uses older, arcane terms, it’s a sign he’s a crank. ¹ Usually it’s some amateur wannabe “intellectual,” or a quasi-mystic, who borders on incoherent. I figure you only get to coin a new term if you are some serious scholar and real genius pioneering new ground; and if you coin more than one, then the bar is even higher. For example Mises coined praxeology, catallactics and thymology, I believe. That’s at least 3. But hey, he is entitled; they all make sense, and he is one of the greatest geniuses and original thinkers of the 20th century.

Another neologism I like is “cooperatism,” coined by Hazlitt to describe what we call libertarianism. ² Libertarianism has been somewhat coopted by minarchists and doesn’t really get at the essence of our property rights allocation rules, which are not directly about “liberty” or “freedom,” but about rules that permit conflict-free use of scarce (rivalrous) resources, and thus enable cooperation between human actors in a division and specialization of labor society or community. Anarchy is too broad since it covers non-libertarian anarchists, and anarcho-capitalist is too narrow. I tend to prefer libertarianism or anarcho-libertarianism, or if we want to get real specific, Austro-anarcho-libertarianism. In any case, “libertarianism” is preferable to “voluntaryism,” since coerced action is “voluntary” but can still be unjust and aggression. ³ If you hand over your wallet to an armed robber, your action is voluntary, but you didn’t meaningfully consent to it. So the crucial criterion is whether a given action is consensual, not whether it’s “voluntary.” So “consensualist” could be another good term for the freedom philosophy, but cooperatism is good too and libertarianism is fine for now. I’m too stubborn to give it up. Some annoying libertarian anarchists say things like “Oh, I’m not a libertarian—I’m an anarchist.” This is dishonest. Others who are obviously libertarians but shun the word for various reasons, such as “I prefer the term ‘liberal.'” Annoying. Just because you don’t “like” a word doesn’t mean you can unilaterally change its definition. As I often point out, all consistent libertarians are anarchist, ⁴ and all true anarchists are libertarian.

But we have to be careful with neologisms. Writers often abuse the privilege, like Hayek with nomos, thesis, taxis, cosmos—concepts and terms  almost no one really remembers or finds useful. I’ve come across others over the years but can’t recall the specifies… Voegelin with his “gnosticism,” others with “immanentizing the eschaton,” Galambos with his “primordial property,” blah blah blah.

Anyway, as much as I tend to think of authors who coin new terms or coopt old terms in idiosyncratic ways as cranks, I can’t help doing it myself. As noted above, I like Hazlitt’s cooperatism, and kinda like my own proposal, consensualism. And I adapted the term “estoppel” and used it in a new-ish way for rights theory, for example. ⁵

And now we come to the point of this rambly post. In my writing on intellectual property, I initially used the term scarcity to refer to the quality of a resource, or thing, that makes it subject to conflict and thus to property rights and ownership. ⁶ This property, “scarcity,” is a technical economic term that roughly corresponds to the economic concept of rivalrousness. It is how my biggest influence, Hans-Hermann Hoppe, uses the term (see last reference), and what Mises more or less means when he refers to “scarce means of action.” ⁷

But one problem with using the word “scarcity” to refer to the “rivalrous” quality of some thing, something that makes it a scarce means of action, that is subject to possible conflict as multiple actors seek to employ the same thing but cannot do so due to its rivalrous nature, is that the term has a different colloquial meaning, which is then exploited by IP advocates to engage in a type of dishonest and disingenuous equivocation. For example we point out that material objects are “scarce,” meaning rivalrous, subject to conflict, possible scarce means of action, and thus are the natural subject of property rights, which sets out rules for ownership so that conflict in the use of these scarce means of action can be avoided by conflict-avoiding humans. But information, ideas, knowledge, patterns, are not scarce since they are not rivalrous—because many people can use the same knowledge without conflict or rivalry—and thus property rights in ideas make no sense. But then a cheeky, smartass IP advocate will just say something like “well good ideas are scarce, so of course they can be owned.” What they mean is good ideas are rare, meaning not very common or abundant. This is the more colloquial meaning of “scarce”. But the economic sense of scarcity corresponds to lack of superabundance (see Hoppe on this).

As an example, if a group of people live in a jungle where bananas are very plentiful, they are not scarce in the informal sense, but they are still “scarce” in the economic and political theory sense, because if I pluck a banana then that banana is scarce—if someone takes it from me, I no longer have it. So then I have to explain to people that “ideas,” whether “good” or not, might be rare (scarce in the informal sense), they are not scarce (rivalrous) in the economic sense. And it is the latter sense which matters for political theory and property rights, since property rights are a response to, a proposed solution for, the problem of conflict, which arises only with genuinely rivalrous goods or things, but not with things that are merely uncommon or rare.

And so in writing after my original Against Intellectual Property, which used the term “scarce”, I have tended to interchange it with rivalrous or explain or define the term each time, which can be tedious, and it still doesn’t stop dishonest IP socialists and pettifoggers from saying “duhh duhh ah don’t know ’bout chew, but in mah ‘sperience good ideas is real scarce!” Ignorant or disingenuous advocates of IP claim that ideas or information is in fact “scarce,” by equivocating on the term, even though the rationale behind IP law is explicitly to respond to the so-called “market failure” caused by the fact that ideas are non-rivalrous (i.e., non-scarce) and therefore are underproduced.  ⁸ For example, as noted by one scholar,

Like other goods, innovative products and processes may be analyzed in terms of two economic characteristics. The first is whether the benefits of the good are excludable. The owner of a bottle of wine may prevent others from drinking, but the producer of radio signals broadcasts for all to hear. The second trait is whether consumption of the good is rivalrous. If one person’s use of the good necessarily diminishes the benefits of another’s use, then it is said to be a rival good. For nonrival goods such as pleasing parkway scenery, all may benefit from the good without diminishing the benefits of others.

Goods vary in their degrees of excludability and rivalrousness. Those that are fully nonexcludable and nonrivalrous are termed public goods. The production of public goods is subject to market failure, for their nonexcludable and nonrival traits suggest that they will be underproduced relative to social need. Potential producers of public goods are uncertain whether they will benefit from the good sufficiently to justify their labors [i.e., “recoup their costs” —SK]. They would also prefer to free ride off the labors of others, certain that they can enjoy the benefits of the good once someone else builds it. Individuals will therefore tend to produce goods with greater excludability and rivalrousness.

The production of desirable public goods is said to present a problem of collective action. Society as a whole favors the development of certain public goods, ranging from military defense to flood control projects. Private citizens may lack sufficient incentives to produce them, however, leading to suboptimal social outcomes. Government is uniquely suited towards solving collective action problems by modifying individual incentives to engage in desirable behavior.

The patent system is exemplary of this sort of market intervention. As information products, inventions exhibit the characteristics of public goods. They are nonexcludable, for whether the invention consists of a new machine, molecule or merchandising concept, others who learn of its nature may become imitators. They are also nonrival, for competitive uses do not impact an inventor’s personal ability to exploit the invention. These externalities are said to discourage inventive activity and diminish progress.

The patent law ameliorates this market failure by allowing individuals to obtain proprietary rights in their inventions. This property rule entitlement creates excludability for patented information products, allowing inventors to prevent free riders from benefiting from their inventions. By diminishing the public goods aspects of inventions, the patent system encourages individuals to increase their investment in innovative activities. ⁹

So the reason for IP law is to create an artificial scarcity where there was none before, to overcome the alleged “market failure” that arises from the fact that “innovative products and processes” are nonrivalrous and therefore public goods! And yet you have idiots saying “well what yew mean ideas ain’t scarce–as fer as Ah know, good ideas is real scarce!”

So, just as I have toyed with making consent the essence of libertarianism, ¹⁰ the primary feature of a “thing” ¹¹ that makes it subject to property rights is that there can be conflict over its use; it is rivalrous. So I have on occasion referred to this quality as conflictability, and such a resource as a conflictable one. ¹² This makes it harder for gadflies to engage in equivocation. We shall see if it catches on.

***

Update:

Discussion with a friend:

So not that this is an incrediblly clever neologism, but while recently listening to Stephan’s latest podcast [KOL435] where he keeps bringing up “consent” it dawned on me, perhaps the libertarian party has so tarnished the word we should side step that dumpster fire and start usingthe description that we are “Consent-atarians”

Consent more than any other word captures the core of anarchism and libertarianism without all the assumption-of-the-listener baggage (in particular anarchism). It also baits the listener into an easy dialogue concerning voting and consent as they would consider it it to be an expression of consent and then we can easily make their head explode by explaining “well what if I don’t consent to voting to make decisions?”

I mean at its core that is all we mean by “anarchism”… just that every interaction we have should be based on the individual giving explicit consent in matters related to other sentient beings (yes I don’t consent to a tornado taking out my house, but that would be silly to claim my rights are violated by Nature)

Thoughts? Doesn’t really roll off the tongue but I can’t think of a better word “consent” that embodies our belief system.

My reply:

So I have toyed with this and other variants have others. For example Antony de Jasay’s Choice, Contract, Consent: A Restatement of Liberalism emphasizes consent, as does Randy Barnett’s “consent theory of contract“. Hazlitt proposed the term “cooperatism”—see The new libertarianism: anti-capitalist and socialist; or: I prefer Hazlitt’s “Cooperatism”. As I mentioned in On Conflictability and Conflictable Resources:

“the crucial criterion is whether a given action is consensual, not whether it’s “voluntary.” So “consensualist” [or consensualism] could be another good term for the freedom philosophy, but cooperatism is good too and libertarianism is fine for now”. Likewise, the voluntarists think they can better capture the essence of all this with the term “voluntarist,” emphasize the need for actions to be not-coerced, that is, voluntary. I would prefer libertarian to voluntarist since the latter term really adds nothing, and has its own problems, namely: if you coerce someone to do something (with the threat of force, say) then their action is technically voluntary. But it’s still aggression. That’s why I think consensualism is better, and even cooperatism is better, than “voluntaryism”.

Now. The thing is that just has I have pointed out previously about the term “aggression” or non-aggression principle, these terms are also not fundamental. An action can only be determined to aggression once we know who the owners in question are, and that depends on a theory of justice in property holdings. In other words, as I explain in ch. 2 of my book [Legal Foundations of a Free Society], the theory of property rights is fundamental and it is what distinguishes libertarianism from all other political philosophies and ideologies. The concept of aggression is dependent on the conception of property rights and justice.

Nonetheless, “NAP,” or opposition to aggression, can be a useful shorthand to describe or allude or point to our basic notions of property rights and justice, even though technically speaking “aggression” is only a subset of rights violations—that is, aggression means violating a person’s ownership over his body. By extension we use it to refer to other forms of trespass or property rights violations.

Likewise, concepts like cooperation and consent are also dependent or derivative; they are not primary. They depend on a more fundamental notion of property rights. Consent means the owner has to consent; to know who the owner is, we need a set of property allocation/determination rules, but yes, in principle, “the owner must consent” implies ownership of scarce resources—according to some property allocation rules or principles. For the libertarian these are: (a) in the case of one’s body: self-ownership (body-ownership), because of the intimate and unique relationship each person has over his own body, including the ability to directly control it; and (b) in the case of previously unowned, scarce resources, then ownership of a contested resource is determined in accordance with (i) original appropriation, (ii) contractual (consensual) title transfer, and (iii) transfer made from an tortfeasor to a victim for purposes of rectification or restitution. (For more on this, see LFFS, ch. 2., et pass.; Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022); idem, “KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019,” Kinsella on Liberty Podcast (Feb. 9, 2019).)

So when we say “consensualism” (or: NAP; or cooperatism) these are shorthand ways of referring to this libertarian core of property allocation and determination rules. As long as this is kept in mind—and frankly, the term “consensualism” helps remind us of the natural links between actors and their bodies and other resources—then these shorthand terms can be useful. I do like consensualism for the reasons given and also for the reasons that you also like this terminology. As long as we keep in mind that it is not completely independent and requires further property allocation rules to flesh out exactly what it means and how it is to be applied in practice—i.e., who gets to consent, that is, who is the owner of the resource to which consent to use is to be granted.

1. Amusingly, in a recent book, the author coins bizarre terms like “architectonics” and “kleristocracy,” and uses other terms like “sortition” or “a dominium in sortitio” in odd ways, and then notes

   We resist any usage of “communitarianism” for the project of this book. Despite its suggestive usefulness, it is freighted with associations to socialism and to the communitarianism of Amitai Etzioni—positions alien to architectonics. We are forced to the terms “architectonics” and “kleristocracy” not out of vanity for novelty or neologism, but in the confidence, as C.S. Peirce once suggested, that they would be “safe from kidnappers.”

   T.L. Hulsey, The Constitution of Non-State Government: Field Guide to Texas Secession (2022) (self-published, of course), n.11; and not online, of course; and under copyright, of course; and no citation to the Peirce quote, or to the Etzioni reference, of course. [↩]

2. See my post The new libertarianism: anti-capitalist and socialist; or: I prefer Hazlitt’s “Cooperatism”. [↩]
3. See also  The Problem with “Coercion”. [↩]
4. See What Libertarianism Is. [↩]
5. The Genesis of Estoppel: My Libertarian Rights Theory. [↩]
6. Hoppe, TSC, chs. 1-2; Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization,” Libertarian Papers vol. 3, art. no. 1 (2011),  also published as ch. 5 of The Great Fiction (2^nd Expanded Edition, Auburn, AL: Mises Institute 2021). [↩]
7. See Kinsella & Jeffrey Tucker, Goods, Scarce and Nonscarce. [↩]
8. See IP Law and “Market Failure”. [↩]
9. John R. Thomas, ‘‘Collusion and Collective Action in the Patent System: A Proposal for Patent Bounties,’’ (2001) University of Illinois Law Review 2001 (2001): 305, 308–09 (describing patents as a response to market failure); footnotes omitted; bold emphasis added. [↩]
10. See Kinsella, The Essence of Libertarianism? [↩]
11. See La. Civ. Code art. 448 et pass.; Kinsella & Gregory W. Rome, Louisiana Civil Law Dictionary (New Orleans: Quid Pro Books, 2011), “Thing” entry. [↩]
12. I used the term at least as early as 2006, if not earlier: See “Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading,” Mises Economics Blog (May 26, 2006): “you say my concept of property is too narrow. Presumably this is because it is restricted to scarce resources. But my answer would be that I don’t start from there. I simply notice there is a conflict–and when there is, it’s always over some conflictable (i.e., rivalrous; scarce) thing; and then I do what libertarians do, and favor the assignment of an owner, and the one i happen to favor is the one with the best claim; which I realize is the one with the earlier (earliest) possession.”  See also other previous uses: KOL019 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basics: Rights and Law-Continued” (Mises Academy, 2011); Libertarian Answer Man: Mind-Body Dualism, Self-Ownership, and Property Rights; KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021); Nobody Owns Bitcoin. [↩]