Libertarian Projects in 1995

In the Preface to Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023 [LFFS]), which contains updated articles published over a nearly 30 year period from 1994 to 2023, I noted that

Although the chapters were all written separately and at different times over three decades, many of them build on (or anticipated) others. For example, in chapter 10, originally published 1998–99, I outlined a sketch of a view of contracts, inalienability, and so on (note 48), and wrote “Elaboration of these ideas will have to await a subsequent article.” I did so in 2003, in the article which became chapter 9. Thus, I was able to piece together several articles in a fairly systematic form since they either built on or anticipated each other and were written to be consistent with each other and all flowing from the same core principles and reasoning.

Thus, my book contains chapters that build and refer to each other even if they were written years apart.

I was reminded of this recently when I came across from a letter I wrote back in 1995 to my friend Jack Criss when I was young associate in the intellectual property department of Schnader Harrison Segal & Lewis, in Philadelphia. ¹ In my letter to Jack, I noted that “My mind is bubbling over with ideas lately, and I find it difficult to devote mental energy to patent law. I am always thinking of a new article or project, libertarian-related.” I had recently switched from oil & gas law to patent law, having just passed the patent bar exam in 1994, but was by this time already becoming a skeptic of IP. I was beginning to write or plan some articles on various aspects of libertarian theory, including IP ²; “Is Intellectual Property Legitimate?” Federalist Society IP Practice Group Newsletter (Winter 2000), based on a version previously published in the Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3, a newsletter I founded in 1997 (ch. 2 of You Can’t Own Ideas); “In Defense of Napster and Against the Second Homesteading Rule,” LewRockwell.com (September 4, 2000; (ch. 3 of You Can’t Own Ideas); “Against Intellectual Property,” Journal of Libertarian Studies (Spring 2001), which won the Mises Institute’s Alford Prize; and so on. One of my submissions on IP to Liberty magazine was rejected in 1996, but they finally published me on IP in 2009, in “Intellectual Property and Libertarianism,” now ch. 4 in You Can’t Own Ideas)) and other topics; I had already published an article on rights theory and related issues. ³ Others were soon to follow (see various chapters in LFFS).

Here is an edited excerpt from the letter.

September 1, 1995

Dear Jack,

Well we talk so much nowadays that I rarely write you a letter, so I guess my journalizing has fallen off lately.  I suppose I would have called you tonight (it’s Wednesday, 11 pm), but you’re out with Catherine.  This may come out jumbled but I just wanted to get a few things down on paper.   Just consider this as a journal entry, also to my best bud.  I was just taking a hot bath and reading, as I love to do, reading (for the second or third time) Rothbard’s Ludwig von Mises:  Scholar, Creator, Hero.  I have been so interested lately in intellectual life, the whole Mises crowd, and libertarianism—as you know.

I do have a couple of patent law articles in the works, but that’s out of necessity for career purposes, etc. I don’t know what will happen with my career; I suppose I could make a good run of it in patent law and keep up my other interests, which is probably the wisest thing to do. Ridgway Foley, the Oregon libertarian I met a few weeks ago, seems to have a nice balance, writing occasional article, giving lots of freedom-philosophy speeches to law schools etc., while maintaining an appellate practice. Actually appellate practice is damned good, well, practice, for lecturing, etc., experience that I’m sorely lacking, not being a litigator. But then I am more interested in original political philosophy theories than in popularization, right now anyway.

I am planning to start giving some talks, I just have to think what on. I may give one on Roman law, with a libertarian twist (centralized law is a bad way to make law, etc.) to “The Justinian Society,” a local group of lawyers of “Italian-American descent.” A lawyer at the firm, Rachel Munafo, is chairman or something of it. She’s conservative, and we had lunch a few months ago. As you know, my “Legislation and Law in a Free Society” is coming out any day now in The Freeman, and the longer version, “Legislation and the Discovery of Law in a Free Society,” is coming out any day now in the Journal of Libertarian Studies. ⁴ I am also working on a very good improved version for, probably, Tulane Law Review or some such. I may give a talk on a version of that to the local Federalist Society chapter, I don’t yet know. And you know I am planning on presenting a paper next January at the Mises Institute’s Austrian Scholars Conference in Auburn, on “The New Rationalist Direction of Libertarian Rights Theories.” ⁵

I have a lot of plans in the works that I’m excited about. The Ph.D. proposal to University of London for a Ph.D. in Laws, on “Estoppel: A Theory of Rights,” has me excited too, though I don’t know in what way a Ph.D. will be useful yet. ⁶ I started sketching some ideas about an article, “Apriori Mises, Axiomatic Rand,” which may be interesting to do—point out many parallels between Rand and Mises/Rothbard/Hoppe (even Kant, perhaps). ⁷ All these related ideas are starting to tie together and I can feel my thinking and writing maturing, I can feel it happening. If I am able to get some more knowledge—and I’m trying, to read many more classics, history, etc.—and get some good speaking ability, I may actually make a popular speaker, at least for some audiences. But you read my draft Ph.D. proposal—you can see how the intellectual property, fraud, contract, property, inalienability, and related theories, are coming together somewhat nicely. Lots of the others I’m considering, like the one on axioms, should factor in nicely. I really think, Jack, that someday my goal will be to write a massive, comprehensive, authoritative and respected treatise, Libertarianism: The Political Philosophy of Individual Rights and Limited Government. I now think I definitely need to save that for later, after I’ve learned more and matured more. ⁸ There are still some areas I haven’t studied enough, primarily because they are a little boring to me, that would need to be in the treatise—like free market environmentalism, voucher systems, politics itself, the history of the libertarian movement, about which I am at a disadvantage since I was born so late after its beginning.

One on the piece on axioms and Rand, Mises, I was thinking this today. You and I are typical, I think, of those very attracted to Objectivism, who are later somewhat disenchanted, but we still stay in its orbit—why do we obsessively, compulsively, look up “Rand” first in the index to any book—and why is it almost a guilty pleasure to see it in a regular, commercial, mainstream bookstore, in the index of a mainstream book? Very weird. But the point is that during the period of heavy enchantment, my later years in high school and first few years in college, I would not have dreamed that libertarianism or some of its proponents would be so similar to Rand. That’s why it was so eye-popping to me to finally break out of Rand’s denunciation of libertarianism as “evil” etc., to finally realize that she was full of shit—and it was a very pleasurable surprise when this finally dawned on me, when I realized Rand could be so wrong, and was wrong in this case, and that the libertarian philosophy O.R. (Outside Rand) was rich, dynamic, and mostly correct. It was like Rand was some aunt who told me that my family had been killed in a fire when I was a kid, but then I find out there is this whole, huge, extended family out there that she’s be maniacally hiding from me. Anyway, the point is, Rothbard/Mises and Rand’s similarities are amazing. I just realized tonight that Mises was Jewish—I thought he was Christian—although Hayek was not Jewish. So all three of them, Mises, Rand, Rothbard, were Jewish libertarians, very old-world, polite, educated, culturally conservative libertarians (though Rand’s weird sexual practices were an exception to her own puritanism). Think about Rand and Rothbard alone: both were the two most popular founders of the modern libertarian movement, both had amazingly similar ideas, both atheist Jews (was Mises atheist? I don’t know), both very culturally-conservative, almost identical philosophy and political theory, though Rand emphasized certain points more so than Rothbard (psycho-epistemology, aesthetics, altruism), and Rothbard went all the way to anarchism, and was also more condemnatory of America’s imperialism than was Russia-hating, cold-warrior Rand. So is it surprising that their concepts on axioms are the same? But from reading the two, you’d never know it. Why give each other such non-recognition (even worse on Rand’s part)?

But many of their axioms are shared, and I think they all go together in basic theory (self-evidence plus undeniability). Like I said of Hoppe in my detailed review of his book, he didn’t offer a systematic cataloguing of a priori truths (what they call axioms, I think). I think a more exhaustive listing, plus a stab at systematizing just what are axioms, will be possibly fruitful. Maybe I’ll submit it to Objectivity—they published Merrill’s piece on axioms, as well as Machan’s, one of his best pieces ever, by the way. So it’s a fitting forum. I don’t know if I’m (yet) competent to develop this, though, especially to the extent Kant is necessary to dredge up.

***

Recently I became friends with Jian Zhu, a Ph.D. in biotech from China, who just started Columbia Law School. ⁹ He already had a voracious appetite for reading and learning—he was just ready—and already an individualist thinker, and thus he really got very interested in Rand and other libertarian thought I introduced him to. I gave him a talk at lunch before he left for law school, warning him about propaganda, exhorting him to keep an open mind and don’t trust them. Now I think that might make a good law review article: sort of a manual for law school students, to protect them, inoculate them, from propaganda in law school. ¹⁰ I envision saying something along these lines. Beware of explicit and implicit propaganda and brainwashing in law school, always question any policy-laden position. First, don’t be surprised that his happens:  this always happens, there is always an underlying normative position. Second, schools and teachers are vastly influenced by the state. So don’t take my word for it, but just beware that many things will be hammered home over and over again that are not so clear—in fact I think they are wrong, but don’t take my word for it. I will just list a few significant areas in which there is subtle propaganda, all of it in a pro-state, or pro-socialist direction, in my opinion. I will just list next to each one a substantial piece of work challenging that view. Validity of government (see Spooner, Tannehills, Rothbard, Benson). We’re a “democracy”. “Right” to vote. The Lochner era.  Exclusionary Rule. Antitrust laws. The Incorporation doctrine.  The dreaded concept “public policy.”  The Great Depression.  Robber barons.  World War II, and the “good guys” won.  The left-right spectrum.  Nazism on the “right,” communism on the “left”; communism is an “ideal.”  The importance of control of money by government, the evils of the gold standard.  Contracts of adhesion.  And so on.

* * *

And we are up here, starting to like the North, and getting our house, finally. ¹¹ That’s chaotic. We thought we’d see you tomorrow, but your flight’s delayed some weeks now; later next month I see Paul [Comeaux] and Danesh [Sarooshi]. ¹²  The main thing I thought of writing about in the tub just now is this, though. In the midst of my intellectual development, I am amazingly alone, and devoid of anyone to communicate with about it. Cindy is not interested, and plus you don’t marry for theory-critiquing ability. You are definitely the most libertarian and most knowledgeable libertarian friend I have, and one of the smartest people I know personally, and you are my best communication source. But as for pure bouncing of theoretical ideas off someone, many of which are legalistic or very detailed, you and I just can’t do that for everything. The only people I know that exist that could do it are professional academics, like Hoppe, [Richard] Epstein, [Randy] Barnett, but I’m not in academic circles and am not really close enough to them to use them as sounding boards. Maybe getting more involved in libertarian circles, events, conferences, etc., will help, I don’t know. ¹³ Maybe I should set up my own bar association chapter for lawyers for liberty or something. I don’t know if there are any libertarian lawyers in the city; I tend to doubt it. Most young lawyers are too into their careers to really interested in scholarly ideas; I think I am a wildly rare exception. Paul is also smart, and conservative/libertarian, and knows more law than you, but that’s about it. My friends [X] are conservative/libertarian, but they’re just you know like normal Americans into freedom. But I am starting to see why some people say it’s important to be at a university or something where you are in the midst of academics and professional thinkers, whom you can bounce your ideas off of; but I don’t think I’d be hardly any better off at a law school full of mainstream robots. It’s just weird how isolate I am. Anyway, all I can do is trudge ahead on my own, which is fine, but I’m afraid that a lot of insights and good suggestions might be missed because I lack the review of other scholars.

It is strange how isolated I am. Being up here we make a lot of phone calls. When I really want to discuss a theoretical idea there are only two people I can call: you, and Paul. Isn’t that frustrating? If you’re out, and Paul’s out or not competent/interested, you know there is not a single person I could call to discuss it, ask a question about it. Not my parents, not [X], not Danesh, perhaps Hoppe but I can’t call him, we’re not close like that, that would be imposing. Perhaps this will change if my stature and reputation somehow rises in the inner circles and I gain more clout.

Anyway my beer’s done so it’s off to bed.

1. See also KOL028 | The Liberty Movement, Past And Present: Recollections With A Friend From The Beginning (Jack Criss). Jack is now with the Delta Business Journal. See “How I Became A Libertarian, in LFFS. [↩]
2. See My IP Odyssey; “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13 (now included as ch. 1 of  You Can’t Own Ideas: Essays on Intellectual Property (Houston, Texas: Papinian Press, 2023[↩]
3. The Genesis of Estoppel: My Libertarian Rights Theory; “Estoppel: A New Justification for Individual Rights,” Reason Papers No. 17 (Fall 1992): 61–74; and “The Undeniable Morality of Capitalism (1994), now in LFFS. [↩]
4. “Legislation and the Discovery of Law in a Free Society” (1995), ch. 13 in LFFS. [↩]
5. “Dialogical Arguments for Libertarian Rights” (1996/2019), ch. 6 in LFFS. [↩]
6. I did start this PhD but abandoned it years later due to time constraints. [↩]
7. See Mises and Rand (and Rothbard). [↩]
8. Never quite finished as expected; Legal Foundations of a Free Society will have to do for now. [↩]
9. I believe this may be him now. [↩]
10. See Advice for Prospective Libertarian Law Students; Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus) (March 3, 2021); Book Recommendations: Private, International, and Common Law; Legal Theory (June 9, 2009). [↩]
11. We ended up moving back to Houston in 1998. [↩]
12. Paul was a law school classmate, classmate at King’s College London, and colleague at Jackson Walker; Danesh was a classmate from King’s College Hall. [↩]
13. I was soon to become far more involved in the Mises Institute and various conferences such as the annual Austrian Scholars Conference. [↩]