On the Non Liquet in Libertarian Theory and Armchair Theorizing

In On the Obligation to Negotiate, Compromise, and Arbitrate, I note that the primary purpose of property rules is to make it possible for fellow humans to avoid conflict, so that they can live amongst each other, trade, specialize, cooperate, and so on. Thus, it makes sense to say that people have an obligation to respect others’ rights, and laws implementing or based on these rights, if and insofar as one values the norms or grundnorms that underlie these laws and rules. In other words, when we are considering property rights and laws, and the administration of justice, again we must be informed by the very purpose of property rights: to reduce conflict in order to make peace, trade, and cooperation possible.

Thus, the very purpose and nature of property norms can also give rise to some subsidiary obligations, namely, obligations to negotiate, compromise, and arbitrate (seek dispute resolution).

One reason for this is that there is a difference between abstract and general principles and between operational and concrete implementations of these principles into legal precepts or laws. The solution to a given practical and real conflict is not always immediately apparent from consulting general principles alone; there are limits to armchair theorizing, rationalist deductivism, and so on. It takes time for a legal system to develop based on more general and abstract principles. So when concrete legal precepts have not yet been developed, or while there is still uncertainty about their application, a propensity or willingness to negotiate, compromise, and arbitrate seems essential to the end of minimizing conflict. ¹

Another reason there needs to be a willingness to negotiate, compromise, and arbitrate is that perfect knowledge is not always possible, errors can be made, and reasonable people of good faith can disagree over facts or how a given law or property rights should be construed or applied in a given case. Second, there can be close calls and gray areas. There can also be diminishing returns in some cases to pursuing justice to the limit. And there can be differing opinions on intractable issues, like abortion.

It is also possible, at least in today’s positive law, that may also be cases of non liquet (a situation where there is just no applicable law). ²

For example, some argue that the International Court of Justice, in assessing the legality, under international law, of the use of nuclear weapons, and its indecision in paragraph 105(2)(E), amounted to a non liquet, as it avoided a clear legal determination. (I reproduce Grok’s summary in the appendix below.)

Now whether the ICJ case was an example of non liquet or not is interesting as a matter of legal theory. If so it could be a mistake, or a result of the underdeveloped nature of international law, which is after all evolving and not complete or comprehensive. Nor is it really libertarian, although I have argued that in some respects international law is closer to libertarian principles than is most modern municipal (national, domestic) law, which is nowadays very illiberal and statutory or legislation-based—an example of “democratic law-making,” as Hoppe calls it. ³

The question could arise as to whether non liquet could apply to libertarian law. Keep in mind that libertarian law is based on property rights, the purpose of which is to assign owners to conflictable (rivalrous, scarce) ⁴ resources so that conflict may be avoided. To have a just legal system and system based on libertarian rights, there can be no contradictions, no need to “balance” rights against each other. Thus, unlike statist systems based on positive law, libertarianism strives for consistency. ⁵ All rights must be “compossible.” ⁶ As I noted in LFFS,

rules of conduct must be communicated ahead of time (ex ante); and they must also be sufficiently concrete to be applied in a variety of situations. These and other considerations lead to the conclusion that laws must be: “(a) general rules or principles that are (b) publicized, (c) prospective in effect, (d) understandable, (e) compossible, (f) possible to follow, (g) stable, and (h) enforced as publicized.”55 Otherwise, a rule cannot serve as an operational guide to conduct or will not be just.” ⁷

And as Rothbard notes,

In the modern libertarian movement, only the natural-rights libertarians have come to satisfyingly absolute libertarian conclusions. The different wings of “consequentialists”—whether emotivists, utilitarians, Stirnerites, or whatever—have tended to buckle at the seams. If, after all, one has to wait for consequences to make a firm decision, one can hardly adopt a consistent, hard-nosed stance for liberty and private property in every conceivable case. ⁸

In addition,

any property rights schema be able to answer the question of who can use what resource now, rather than waiting for some future information, otherwise people would not be able to survive because they could not use resources to produce and consume in the present. ⁹

Given all this, and given the propensity of libertarians to want answer to all possible questions, leading sometimes to hyper-rationalist, deductivist armchair theorizing, ¹⁰ back in December 2022 I sent an email to Walter Block and Marc Victor, with whom I’ve discussed related matters, ¹¹ and a few others about non liquet and related issues to get their reaction.  

Initially this spurred me to write Roman Law and Hypothetical Cases, and a few other related posts, such as:

• Epstein on Roman Law
• The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism
• “Corpore Corpori”: “To the body”: Torts in the Roman Law

And now, this one. With the background above in mind, below are some edited emails to and from others about this issue.

KINSELLA TO BLOCK AND VICTOR

[Dec. 17, 2022]

Walter and Marc –

You might find this concept of interest, the non liquet — particularly, how it’s used in international law —

In law, a non liquet (commonly known as “lacuna in the law”) is any situation where there is no applicable law. Non liquet translates into English from Latin as “it is not clear”.^[1] According to Cicero, the term was applied during the Roman Republic to a verdict of “not proven” where the guilt or innocence of the accused was “not clear”.^[2] Strictly, a finding of non liquet could result in a decision that the matter will always remain non-justiciable, whereas a lacuna denotes within that concept a lacking hence that the matter should in future be governed by law.

… A non liquet applies to facts with no answer from the governing system of law. It is prominent in international law as global forums such as the International Court of Justice and United Nations ad hoc tribunals are reluctant to invent or heavily mould law to redress a moral-legal lacuna.

It occurs to me that for situations in which libertarian rights and theory cannot provide an answer (lifeboat situations or other situations where “peace is not possible”); perhaps intractable issues such as possession of nuclear weapons, torture, abortion — we should follow the lead of international law and simply declear a non liquet. Libertarian theory and international law are similar in that they are not fully-worked out or positive-law systems, unlike the well-developed private-law systems in the west, namely the common law and Roman/civil/continental law. Since international law is more normative and based on arguments and natural law reasoning, but is not really “complete,” ¹² and since libertarian theory is more abstract and generally and serves more as a guide to what an actual legal system should comply with rather than worked out norms, ¹³ perhaps it makes more sense to sometimes just say– some issues, libertarian theory cannot (ever? or yet?) deal with. Like, what is the age of majority? Etc. “it’s a non liquet; it is not clear; we cannot say from our armchairs.” ¹⁴

Of course “armchair” or deductivist libertarians won’t like this because they want to rationalistically deduce all answers from our armchairs…

Marc you maybe could rely on a similar concept for your “gray areas” stuff in L&LL. Just a thought.

[Note: This last comment regards discussions by Victor and Matt Sands and I about how to handle “gray areas” or continuum issues, and what core laws and rights are absolutely necessary in any libertarian community.]

BLOCK TO KINSELLA

Dear Stephan:

You read me correctly. I’m against “non liquet” as a failure of libertarian theory.

I’m an “armchair libertarians who won’t like this because I want to rationalistically deduce all answers from our armchairs.”

Certainly this applies to “lifeboat situations, possession of nuclear weapons, torture, abortion.” Also immigration, voluntary slavery. I’ve written on all these subjects, I think, from the correct libertarian point of view.

The only non liquet thing I can think of is continuums: age of consent, what constitutes a threat when there’s a gray area, etc. I regard that as a failure of libertarian theory. Perhaps the next generation of libertarian theorists will solve those issues.

KINSELLA COMMENT

As I suspected, Walter does want to be able to deduce everything from our armchairs. I discussed this with Jeff Tucker. As he wrote me:

TUCKER TO KINSELLA

Imagining that we can deduce everything in abstracto from our armchairs sounds dangerous to me.

You can criticize Hayek but he was completely correct about the problems with this approach. We need rules of thumb and general principles and ideals and otherwise be attached to reality and the unfolding of events of human experience.

I don’t think Mises would have agreed with this deductivist approach. He believed that core postulates of economics were deductive but that’s all. Certainly not the whole of life.

KINSELLA TO TUCKER

I agree. I’ve always had misgivings about Rothbard’s suggestions that we need libertarian thinkers to hammer out a full “libertarian law code.”

Hayek was right about so much. He was even right that we can “tolerate” even “bad” laws so long as they are general, predictable, and known in advance. As opposed to a lawless, arbitrary regime. His mistake was he went a bit far in being too anti-normative and too relativist. But he was great on so many isolated things.

KINSELLA COMMENT

Regarding Hayek’s view that laws should be general, predictable, and known in advance, see my chapter “Legislation and the Discovery of Law in a Free Society,” Part III.B.1, n.34:

The “other” fundamental requisite of law is that law be based on rules of general application, a requisite that special statutes tend to undermine. I am grateful to Leonard Liggio for calling Sartori’s works to my attention. But having statutory, artificial law be predictable, known ahead of time, and of “general applicability” is not sufficient for law to be just. If this is your only criteria, you can support all manner of statist laws, as Hayek does. See Walter E. Block, “Hayek’s Road to Serfdom,” J. Libertarian Stud. 12, no. 2 (Fall 1996), pp. 327–50. [See also Kinsella, Hoppe on Hayek]

Or as I wrote in “Legislation and the Discovery of Law in a Free Society” (Part V.B, “The Role of Commentators and Codes”; footnotes modified):

If the public were ever to become libertarian enough to adopt a libertarian constitution, one would probably not be needed, since private justice supplied on the market, or even in government-based common-law courts, would veer in a libertarian direction in response to the people’s sense of justice.

But if a libertarian constitution or code were in place, it would be relatively sparse. It would specify as first principles that the initiation of force is illegitimate and that the individual rights to own one’s own body and any property one homesteads or acquires voluntarily from other owners are absolute and inviolable. ¹⁵ As deductions therefrom, it could specify that rape, murder, theft, assault, battery, and trespass are also rights-violations. As Rothbard states:

The Law Code of a purely free society would simply enshrine the libertarian axiom: prohibition of any violence against the person or property of another (except in defense of someone’s person or property), property to be defined as self-ownership plus the ownership of resources that one has found, transformed, or bought or received after such transformation. The task of the Code would be to spell out the implications of this axiom (e.g., the libertarian sections of the law merchant or common law would be co-opted, while the statist accretions would be discarded). The Code would then be applied to specific cases by the free-market judges, who would all pledge themselves to follow it. ¹⁶

(I would add that the “libertarian” sections of Roman law, e.g., as embodied in modern civil codes, could be adopted in developing Rothbard’s libertarian Law Code, or at least could be referred to by private courts in fashioning legal rules to handle actual disputes.) ¹⁷

But because of the near-infinite variety of ways in which humans can interact, such a code could never be made all-comprehensive. Any codifier who attempted to do this would face the information problems discussed herein. At some point judges need to consider the particular facts of a controversy and, keeping principles of justice in mind, eke out the applicable rule. Judges will sometimes make mistakes, but, then, the fact that individuals are fallible can never be escaped, so this criticism is moot.

HOPPE COMMENT

All too often some libertarians lose sight of the fundamentally important distinction between the core, the foundational principles of a theory on the one hand and its application to various peripheral—often far-fetched or merely fictional—practical problems on the other; and far too much effort and time, then, has been spent on debating peripheral issues the solution of which may well be arguable, but which is of minor importance in the larger scheme of things and helps distract public attention and concentration away from those questions and issues that truly matter and count.

The way law and justice would proceed in a private-law society is that theorists ask what arrangement of the world such persons would agree on as just. And they then spin out an answer as to what they believe this agreement between such entities to be, and why. Anything else would be ultimately no more than idle mental exercises: deriving wildly unrealistic conclusions from wildly unrealistic assumptions, i.e., examples of “garbage-in-and-garbage-out.”  ¹⁸

KINSELLA RESPONSE TO BLOCK

Still, it’s an interesting concept. Maybe you would then argue that there are some non liquet situations now, but we should aspire to deduce or develop theory to gradually shrink the domain of non liquet. Of course, if the world was fully libertarian then all the practical legal systems would be aspiring to comply with our general libertarian precepts—so they would eventually reduce or eliminate the number of non liquet situations, and presumably/hopefully from a libertarian perspective; but that does not mean this would be done by theorists in their armchairs deducing it all—lots of the concrete details would have to come from pragmatic solutions that real legal systems settle upon, from custom, tradition, compromise, negotiation, agreements, and so on.

If nothing else, having real-world cases helps us devote our energies to problems that actually need attention from any just legal system. As I wrote previously (footnotes omitted/simplified),

Barnett does not provide a rigorous argument showing where the exact limits of the ability to deduce concrete rules are. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? ¹⁹ In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked, “Under such and such a possible or conceivable combination of circumstances, what would the law require?” [footnote omitted] It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law, although, as noted, there are limits to armchair theorizing.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights. Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules ²⁰ It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to. ²¹

See also KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021):

“Libertarian legal philosopher, Randy Barnett, in his book, The Structure of Liberty, talks about the distinction between what he calls abstract legal principles or natural rights and concrete legal principles or laws or legal precepts. So one is basically abstract general. They don’t do much guidance for everyday behavior. The non-aggression principle itself offers some guidance, like don’t commit aggression, but really the non-aggression principle’s purpose is to guide us in what laws to enforce and what laws are just.”

What do we need? Any free society needs law—private law based on libertarian principles.

So there is a need to identify and clarify our basic libertarian principles, and for law to develop to implement and apply these principles.

Randy Barnett: basic libertarian principles concern abstract natural rights or “background” rights; “legal precepts” are the concrete legal rules that develop to implement the basic principles.

Some libertarians talk of a need to develop a libertarian “constitution” or “law code”. Rothbard, for example:

• • “While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully, libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.” —Murray N. Rothbard. “Ethics of Liberty.”
  • “there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.” https://mises.org/library/how-have-law-without-legislation

And yet any law code that libertarian theorists devise cannot be hyper-detailed and all-encompassing.

• • For one thing, many of the particular rules in a given setting will depend on contractual relationships and choices. Libertarian theorists, such as Rothbard, David Friedman, Hans-Hermann Hoppe—envision various territorial enclaves whose internal legal rules are based on local preferences, custom, and contract.
  • Hoppe’s “covenant communities”: “a libertarian world could and likely would be one with a great variety of locally separated communities engaging distinctly different and far-reaching discrimination” (“e.g. nudists discriminating against bathing suits,” as Jeff Tucker points out in Idiot Patrol).
  • Rothbard: “In a country, or a world, of totally private property, including streets, and private contractual neighborhoods consisting of property-owners, these owners can make any sort of neighborhood-contracts they wish. In practice, then, the country would be a truly “gorgeous mosaic,” … ranging from rowdy Greenwich Village-type contractual neighborhoods, to socially conservative homogeneous WASP neighborhoods.” —Rothbard, from his 1991 Rothbard-Rockwell Report article, “The ‘New Fusionism’: A Movement For Our Time”
  • Or as David Friedman thinks, some enclaves might have private versions of intellectual property.

So we cannot predict what rules will be voluntarily adopted.

• • And while libertarian philosophers can help systematize and identify the abstract, general libertarian principles, we have to be wary of the limits of armchair theorizing.
    • We cannot deduce all the legal rules that would flow from abstract libertarian principles.
    • Law should develop organically and in response to real disputes where solutions may be found and used to develop the law further in subsequent legal disputes.

A less libertarian society would be one in which basic libertarian principles are universally recognized and respected, and these inform the development, over time, of developed bodies of private law.

• • The basic libertarian principles derive from the common moral sense of a decent, humane people, with influence from libertarian political philosophers.
  • Libertarian scholars help identify and clarify our basic principles—the basic principles that reason shows us are necessary for us to live together in peace, cooperation, and prosperity.
  • Then concrete legal precepts (laws) develop over time as the basic libertarian principles, as well as previously developed private law, are applied to solve disputes between people.
  • As the body of private law develops and grows, legal scholars restate, summarize, codify, and critique the law:
  • The Code of Hammurabi, 1755–1750 BC
  • The Roman Corpus Juris Civilis (529–34), including The Institutes of Justinian and the Digest of Roman Law (or Pandects);
  • Coke’s Institutes of the Lawes of England 1628–44
  • Blackstone’s Commentaries on the Laws of England. 1765–70
  • The French and other European Civil Codes;
  • American Law Institute’s Restatements of the Law(compilations of American caselaw)
  • Corpus Juris Secundum (encyclopedia of American law, named after the Corpus Juris Civilis) and its competitor American Jurisprudence Second

So:

• • We need a society that respects basic libertarian principles and values
  • A clear statement and explanation of these principles
  • A body of concrete legal rules
    • Not by legislation
    • Not deduced apriori by libertarian philosophers from their armchairs
    • Developed in a decentralized law-finding process
      • Common-law, Roman law
    • Legal scholars to restate, present, categorize, and publicize the law
      • Legal codes

So the libertarian constitution starts with a concise presentation of libertarian principles, which can be used for further development of libertarian theory and also could be relied on by courts in developing legal rules to settle disputes.

And this is where Kinsella’s Libertarian “Constitution” will start.

The better title: “State Constitutions vs. the Libertarian Private Law Code”

Tired of working by committee so here will prepare my own Declaration of Libertarian Principles:

• • Hierarchical, systematic, principled, anarcho-capitalist
  • Carefully defines and uses terminology
  • Drafts so people can see changes, and adopt it (like Creative Commons)
  • Totally open (no copyright) so can be adopted and modified
  • Anchored in Rothbardian anarchist libertarian principles and Austrian economics
  • Links or footnotes for elaborations or related material

Basic Principles:

• • In order to achieve peace, prosperity and cooperation, and to avoid disputes, in a world of scarce (rivalrous) resources, property rights are assigned to all scarce, rivalrous resources where conflict is possible
  • The owner of a contested resources is determined thusly:
    • In the case of the human body, each person is prima facie the owner of his body (“self”-ownership).
    • In the case of previously-unowned, external resources, the owner is determined in accordance with three principles:
      • Original appropriation: the first user of a resource has a better claim than latecomers
      • Contractual transfer: Ownership may be acquired by consensual title transfer from a previous owner
      • Rectification: transfer as a result of a tort or offense—use of another person’s owned resources without consent (trespass) gives rise to a claim by the victim on resources owned by the aggressor, for purposes of restitution.
      • Meaning: The initial user of a resource presumptively has a better claim to the resource than anyone else; unless he has transferred it to a second owner by contract or as a result of rectification for an offense.
    • Hoppe:
  • “In conjunction with the privatization of all assets according to the principles outlined, the government should adopt a private property constitution and declare it to be the immutable basic law for the entire country. This constitution should be extremely brief and lay down the following principles in terms as unambiguous as possible: Every person, apart from being the sole owner of his physical body, has the right to employ his private property in any way he sees fit so long as in so doing he does not uninvitedly change the physical integrity of another person’s body or property. All interpersonal exchanges and all exchanges of property titles between private owners are to be voluntary (contractual). These rights of a person are absolute. Any person’s infringement on them is subject to lawful prosecution by the victim of this infringement or his agent, and is actionable in accordance with the principles of the proportionality of punishment and of strict liability.[19]
  • “As implied by this constitution, then, all existing wage and price controls, all property regulations and licensing requirements, and all import and export restrictions should be immediately abolished and complete freedom of contract, occupation, trade and migration introduced. Subsequently, the government, now propertyless, should declare its own continued existence unconstitutional—insofar as it depends on noncontractual property acquisitions, that is, taxation—and abdicate.[20]” Excerpt From: Hans-Hermann Hoppe. “Democracy: The God That Failed.” Apple Books.
  • Implications and applications
  • TBD…

And see: The Limits of Armchair Theorizing: The case of Threats:

Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

Yet, Barnett does not provide a rigorous argument showing where are the exactlimits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?”25 It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.

Barnett first maintains that there are limits to the ability to deduce specific legal precepts from abstract principles of justice (natural rights), in part because many sets of legal precepts are consistent with the general parameters of the abstract principles of natural rights (pp. 109–11). He argues that a common-law type decentralized legal system, unlike law professors and philosophers, can develop legal precepts because, in such a system, they gradually develop and evolve from the outcomes of thousands of actual cases.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights (Hoppe [A Theory of Socialism and Capitalism] 1989b, p. 131; Rothbard [The Ethics of Liberty] 1998; Kinsella [A Libertarian Theory of Punishment and Rights] 1997, pp. 607–45). Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.26 It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.

Barnett thus makes a convincing case that, in a decentralized legal system such as the English common law (or the early Roman law, the Law Merchant, and even modern arbitral systems)—especially one in which judges or arbitrators attempt to apply fundamental notions of justice to concrete situations—it is reasonable to expect a body of concrete legal concepts and precepts to develop, which are more or less compatible with fundamental notions of justice.27

WALTER

Yes, the less liquet the better.

KINSELLA

Funny, but “liquet” means clear. “Non liquet” means we can’t decide because it is not clear enough.

What you want is more liquet, and les non.

I also agree we want more liquet, more clarity, and one goal of libertarian philosophers is to develop and advance theory, but the concrete legal rules and precepts have to be developed from pragmatic institutions and practices. I see the roles and functions as complementary, but both necessary. Neither can do it all alone. You can’t have just decisions and legal rules developed without some general principles to guide it, but the theorists can’t deduce everything from their armchairs because they can never have enough context in hypothetical, imagined situations (thought some Roman jurists did this, to some extent, by taking up hypotheticals). ²²

VICTOR TO KINSELLA AND BLOCK

Hi guys. I’ve been out of town. Here are my brief thoughts:

I agree there are many hard questions and “grey areas” where the libertarian NAP doesn’t provide an easy answer. Walter refers to these as continuum problems. There are many of them. We don’t need to resolve them now. Our mission should be to convince people about the basic principle. Regarding these problems, I think they should be resolved, within reasonable limits, in the local communities. For example, regarding the age of consent, we do need to establish the reasonable range. If it is determined the range is between 15-19, then the local communities should simply select an age by employing whatever mechanism they please. People are not entitled to have their personal constructions of the NAP enshrined into the law for everyone to follow. Instead, I think we are all entitled to at least a “reasonable construction” of the NAP wherever we go.

Peace.

***

I think the key to resolving the hard questions is to acknowledge that the law isn’t about simply incorporating our personal constructions of how the NAP works into it. Instead, our goal should be to achieve a reasonable construction of the NAP into the law everywhere. Indeed, this is all we are entitled to. If that’s the goal, then however a community adopts whichever reasonable construction is incorporated into the law doesn’t matter. Even if a dictator selects the rule, or a coin flip is used, so long as it is a reasonable construction of the NAP, no person has a legitimate right to complain. ²³ If this is the case, I’d say that’s the legitimate role of government; to select whichever reasonable construction of the NAP applies in their geographic location. Said in Walter Block terms, government resolves continuum problems. I know you reject this definition of government. However, I disagree. This is indeed a government function. It’s the one example of government that doesn’t violate the NAP. Of course, taxes can’t be levied to fund anything but this isn’t fatal to the definition.

What if this definition of government allows us to communicate a message to the general public that believes (correctly using my definition) that government is absolutely necessary? No government is a nonstarter for most people. Maybe they’re right?

Would you abandon your accurate but fatally flawed label of anarchocapitalist if it helped us sell the message? We are actually anarchocapitalists who support small government to resolve continuum problems. Maybe give it some thought. We need to do things differently if we want to be effective. I think it’s the right resolution to an unsolved issue in any event. We can’t just leave continuum problems hanging unresolved in our political philosophy.

My two cents…

1. Roman Law and Hypothetical Cases; KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021); KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021). [↩]
2. Wikipedia, Non liquet. But see the The 1804 French Civil Code, Code Napoleon: or, The French Civil Code (London: William Benning, 1827, art. 4: “The judge who shall refuse to determine under pretext of the silence, obscurity, of insufficiency of the law, shall be liable to be prosecuted against as guilty of a refusal of justice.” [↩]
3. See Kinsella, “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society [LFFS] III.B.4.b, text at n.61. See also Kinsella, KOL250 | International Law Through a Libertarian Lens (PFS 2018); Kinsella, International Law, Libertarian Principles, and the Russia-Ukraine War, Free Life (19 April 2022). [↩]
4. On Conflictability and Conflictable Resources. [↩]
5. See Kinsella, “What Libertarianism Is,” in LFFS, the section “Consistency and Principle”). [↩]
6. See Hillel Steiner, “The Structure of a Set of Compossible Rights,” The Journal of Philosophy Vol. 74, No. 12 (Dec., 1977): 767–775; Billy Christmas, “A Reformulation of the Structure of a Set of Compossible Rights,” The Philosophical Quarterly 69 (2019): 221–234; Tom G. Palmer, “A Review of Hillel Steiner’s An Essay on Rights,” Cato Journal 15, no. 2 (Fall/​Winter 1995; also https://www.cato.org/cato-journal/fall/winter-1995): 289–291; also Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript];  Libertarian Answer Man: Easements and Rights of Way; KOL420 | There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023). [↩]
7. Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS, text at n.55. [↩]
8. Murray N. Rothbard, “Beyond Is and Ought,” Liberty 2, no. 2 (Nov. 1988; also https://mises.org/library/beyond-and-ought): 44–45 (emphasis added). [↩]
9. Kinsella, Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in LFFS, Part III.D, text at n.56. See also “Defending Argumentation Ethics,” in LFFS, n.31; and Murray N. Rothbard, “Interpersonal Relations: Ownership and Aggression,” in The Ethics of Liberty (New York: New York University Press, 1998), pp. 45–46, at 46, reproduced in substantially similar form in idem, “A Crusoe Social Philosophy,” Mises Daily (December 7, 2021). See also related discussion in “How We Come to Own Ourselves,” in LFFS, n.14 and “Law and Intellectual Property in a Stateless Society,” in in LFFS, n.27; and Hans-Hermann Hoppe, “From the Economics of Laissez Faire to the Ethics of Libertarianism,” in The Economics and Ethics of Private Property, pp. 328–30; Hoppe, “On the Ultimate Justification of the Ethics of Private Property,” in The Economics and Ethics of Private Property, p. 345 (“Nobody advocating a wait-for-the-outcome ethic would be around to say anything if he took his own advice seriously. Also, to the extent that utilitarian proponents are still around, they demonstrate through their actions that their consequentialist doctrine is and must be regarded as false. Acting and proposition-making require private property rights now and cannot wait for them to be assigned only later.”); Hoppe, “Appendix: Four Critical Replies,” in The Economics and Ethics of Private Property, p. 407; idem, “The Ethics and Economics of Private Property,” in The Great Fiction, at section III, “Misconceptions and Clarifications. [↩]
10. The Limits of Armchair Theorizing: The case of Threats; Roman Law and Hypothetical Cases; Konrad Graf, “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Libertarian Papers 3, 19 (2011), Part III, “Practice: The Armchair and the Bench”; KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021); KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021). [↩]
11. e.g. KOL358 | Peace Radicals Ep. 40, with Marc Victor of Live and Let Live, and regarding his Live and Let Live project. Also discussions with Matthew Sands of the Nations of Sanity project, e.g. KOL450 | Together Strong IP Discussion (Matthew Sands of Nations of Sanity feat Econ Bro); KOL442 | Together Strong Debate vs. Walter Block on Voluntary Slavery (Matthew Sands of Nations of Sanity); KOL426 | Discussing Immigration and Homesteading Donuts with Matthew Sands of Nations of Sanity. Sands and Victor have differing views about what areas of libertarian theory are fundamental and which are more optional and areas on which reasonable libertarians can disagree. [↩]
12. Kinsella, KOL250 | International Law Through a Libertarian Lens (PFS 2018); Kinsella, International Law, Libertarian Principles, and the Russia-Ukraine War, Free Life (19 April 2022). [↩]
13. Roman Law and Hypothetical Cases; KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021); KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021). [↩]
14. The Limits of Armchair Theorizing: The case of Threats; Roman Law and Hypothetical Cases; KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021); KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021). [↩]
15. Aggression and Property Rights Plank in the Libertarian Party Platform. [↩]
16. Murray N. Rothbard, Man, Economy, and State, in Man, Economy, and State, with Power and Market, Scholar’s ed., second ed. (Auburn, Ala.: Mises Institute, 2009), p. 1053 n.4. See also idem, For a New Liberty, second ed. (Auburn, Ala.: Mises Institute, 2006), at 282. On the limits of armchair theorizing, see Kinsella, “The Limits of Armchair Theorizing: The case of Threats,” Mises Economics Blog (Jul. 27, 2006); also “Knowledge, Calculation, Conflict, and Law,” in LFFS, the section “Abstract Rights and Legal Precepts” and the following section; and “On Libertarian Legal Theory, Self-Ownership and Drug Laws,” in LFFS. See also Kinsella, “Roman Law and Hypothetical Cases,” StephanKinsella.com (Dec. 19, 2022) and “Knowledge, Calculation, Conflict, and Law” (ch. 19), at n.64, discussing the practice of Roman jurists developing the Roman law by exploring and answering hypothetical cases.

    [Also:

    While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future. (( Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), at xlviii–xlix. [↩]

17. See Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities; also Roman Law and Hypothetical Cases; KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021); KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021). [↩]
18. See, on this issue, Mises: Keep It Interesting. [↩]
19. The Limits of Armchair Theorizing: The case of Threats. [↩]
20. [See Mises: Keep It Interesting.] This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises, The Ultimate Foundation of Economic Science, p. 41; idem, Epistemological Problems of Economics, pp. 14–16, 30–31, 87–88; idem, Human Action, pp. 64 et seq. See also Hoppe, A Theory of Socialism and Capitalism, p. 142, as quoted in “Causation and Aggression” (ch. 8), n.4. See also “A Libertarian Theory of Punishment and Rights” (ch. 5), n.36. [↩]
21. Adapted from Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS. [↩]
22. Roman Law and Hypothetical Cases. [↩]
23. Note from Kinsella: This reminds me of the idea of the law and economics crowd that if not for Coasean transaction costs, it would not matter where costs were initially allocated, such as whether the railroad should be liable to the farmer for fires caused by sparks from the railroad; if they are allocated incorrectly, then the parties will take this into account and move on. However, transaction costs cannot be neglected, so it does matter; justice matters. See Kinsella, KOL157 | “The Social Theory of Hoppe: Lecture 5: Economic Issues and Applications,” transcript at 01:15:48; Hoppe, “The Ethics and Economics of Private Property,” in The Great Fiction, in sec. VI, “Chicago Diversions” section. [↩]