KOL218 | Argumentation Ethics – Patterson in Pursuit

Kinsella on Liberty Podcast, Episode 218.

This is Episode 50 of the Patterson in Pursuit podcast, where host Steve Patterson interviews me about Hans-Hermann Hoppe’s argumentation ethics.

[Update: He does a breakdown of our discussion in Episode 63.]

Patterson’s description:

If we choose to argue, have we presupposed an ethical framework? Is “self-ownership” a concept that cannot coherently be doubted?

To help me answer these questions, I’m joined by one of the most prominent supporters of “argumentation ethics” – the theory that says ownership is inescapable, and as soon as we choose to argue, we’re committed to a set of ethical values.

Related resources:

• Kinsella, “Argumentation Ethics and Liberty: A Concise Guide” (2011) and Supplemental Resources
• Hans Hermann Hoppe, “On The Ethics of Argumentation” (PFS 2016)
• Kinsella, New Rationalist Directions in Libertarian Rights Theory
• Frank van Dun, “Argumentation Ethics and The Philosophy of Freedom”
• Kinsella, The Genesis of Estoppel: My Libertarian Rights Theory
• Kinsella, Defending Argumentation Ethics: Reply to Murphy & Callahan

Update: Here are his videos, of our interview, plus his followup. I append transcripts for each below.

Summary (Grok)

Steve Patterson interviews Stephan Kinsella on Hans-Hermann Hoppe’s argumentation ethics (Patterson in Pursuit, Episode 50; KOL218). Patterson is already a libertarian and likes rationalist arguments, but he is not convinced that the premises are inescapable.

Kinsella first restates libertarianism before justifying it. He treats it as a political or meta-ethic about what the law should be, not a full personal morality. The non-aggression principle is shorthand for property rules that assign control of scarce resources, including bodies, by original appropriation, contract, and a few supplementary rules such as restitution. Those rules are symmetrical: force is a response to force. Minarchists and “rule of thumb” liberals, he says, are really allowing some aggression against innocents. Randians are closest but wrong on intellectual property and anarchism.

On hard cases, such as grabbing a child or a distracted adult out of traffic, Kinsella denies that these are exceptions to rights. Consent can be implicit in guardianship, custom, and background communication; a rescuer may also accept a small risk of liability. Borderline cases need judgment, as in Randy Barnett’s distinction between abstract rules and legal precepts. Every legal system has them.

He then rejects the usual justifications. Natural-law and Randian arguments run into the is-ought gap unless they already assume shared values, as in Roderick Long’s “since-then” move. Utilitarianism cannot rank utility and still does not show why taking from Bill Gates is rightful. Hoppe’s alternative is that truth claims can be settled only in argumentation, an idea drawn from Jürgen Habermas and Karl-Otto Apel and turned toward rights with Mises and Rothbard. Argumentation presupposes peace, honesty, and respect for each speaker’s bodily integrity, hence self-ownership. Because it is a real activity, it also presupposes standing room and other scarce means. Property includes a latecomer rule, so the earlier user has the better claim. A socialist ethic contradicts those presuppositions and cannot be justified. The norms are not causal walls: you can violate a right, but you cannot justify the violation. Bob Murphy and Gene Callahan’s objection that the norms hold only during the argument fails, Kinsella says, because argument aims at conclusions that apply outside it.

Patterson accepts the conclusions and the control shown in speaking, but not the step to ownership. Control or possession is not a right; rights may be useful concepts, like chess rules, without being inescapable. He can affirm possession and still deny legitimate ownership, or treat ownership as an agreement he may break. Counterexamples such as a tax on the tall, or transfers from low-IQ to high-IQ people, are meant to keep ownership while dropping libertarian conclusions. His sticking point is inescapability. He is partly drawn to ethical nihilism, with love and social flourishing as the real good if people adopt ownership rules.

Kinsella answers that an actual dispute is already about who the owner is, so skepticism about the concept drops out once a claim is made. Argumentation’s presuppositions come first; intelligence, race, or sex cannot then subtract rights from people capable of acting and arguing. Universalizability rules out particularistic reasons such as “because I am me.” He also says hostile libertarian critics already believe socialism is unjustifiable and that justification is argumentative, so they are attacking Hoppe for saying what they believe. The theory is less a conversion tool than an account of why competing systems cannot be justified. Empathy and social life explain why people argue; economic confusion and the state explain why they miss anarchism.

Patterson closes unconvinced but not hostile: proponents overclaim certainty, critics dismiss too fast, and some presuppositions of argument are still worth examining.

Grok summary: where I push back against or disagree with some of his overly metaphorical or platonist or equivocal or reificationist arguments or assertions or assumptions—

You never name those faults, but you do push back on the moves that come closest: the game metaphor, rights as “just a concept,” and the love-and-flourishing substitute for an inescapable norm. Patterson is the one pressing the equivocation. You mostly defend the leap rather than concede it.

The clearest case is the game and “just a concept” exchange, after 55:02 and into Debating Argumentation Ethics. He says rights are concepts we act as if we have, like chess-tournament rules: consistent, useful, not inescapable. You answer that calling it a game “implies a type of moral cynicism or moral skepticism that I don’t have,” and that “do rights exist” and “it’s just a concept” are “fraught with difficulty” because they play “into scientism.” You send him to concept formation, Rand’s in particular, and say that calling something “just a concept” is “kind of misleading.” That is a direct rejection of his conventionalist, anti-reification framing. You do not say he is reifying anything. You say he is deflating a real conceptual category into a optional game.

Right after that, he says he can coherently affirm possession of his body in argument and still deny legitimate ownership. You treat that as a refusal to make the normative claim the activity already requires. Then, when he says ownership is only a socially useful agreement he may follow or not, you answer with the angelic-beings picture: floating above “silly humans” and calling the dispute “game play” does not describe an actual conflict, because the parties “both actually are claiming ownership of that resource” and cannot claim it while denying the concept. Again, you are rejecting his metaphor and his skepticism, not accusing him of Platonism.

Near the end, under Kinsella’s Defense, he grounds ethics in ethical nihilism plus one value: if people treat ownership like chess rules, society flourishes and individuals can love, and “love is the good.” You say, “Yet I would even myself disagree with what you just said,” and recast argumentation ethics as a demonstration that socialism cannot be justified, not as a persuasion trick or a love-maximizing convention. That is the plainest disagreement with his substitute foundation. You also tie rights to empathy and evolved social nature there, which is your own psychological grounding, not a correction of a reification in his.

You do not catch him in an equivocation. The equivocation challenge runs the other way. At 55:02 he asks how control of vocal cords becomes legitimate ownership, then “controller rather than an owner,” then “is the claim then that ownership is inescapable, or is it that control is inescapable?” You distinguish possession from ownership and Crusoe’s control from rights against other people, ¹ but you do not grant that the argument equivocates. You treat the dispute as already a dispute about who the owner is.

Elsewhere you disagree with him, but not on these grounds: the street rescue is “the wrong way to look at it,” a rule of thumb is only a gloss on permitting aggression, and political ethics are overlapping sets rather than a subset of ethics. None of that is aimed at metaphor, Platonism, equivocation, or reification.

Ep. 63 – The Limits of the Non-Aggression Principle | Interview Breakdown

Patterson’s recap: summary (Grok)

These are Stephan Kinsella’s comments as Steve Patterson retells them in the Episode 63 breakdown. Patterson is paraphrasing the Episode 50 exchange, not quoting it line by line.

On the bus rescue, Kinsella says consent has to be communicated in a public language, and language is not only words. Norms and customs fill in the background. A distracted man about to walk into a bus is not wearing a “do not rescue me” sign, so he has not changed the default presumption. Most people would assume he consents to being grabbed. If that assumption is correct, the grab is consented to and is not a rights violation.

If the assumption is wrong, Kinsella’s fallback is that the rescuer knowingly takes a small risk of legal liability and hopes for forgiveness. He also says the pedestrian, by his own conduct, puts neighbors in a split-second bind, so the uncertainty is his fault. Later denial does not erase the consent already communicated. Someone who truly refuses rescue has to signal it, as with a do-not-resuscitate marker.

He adds that these cases are almost always on someone’s property. The owner’s rules, even implicit ones, decide the issue. The street-and-mist hypothetical leaves out whose land it is.

On assumed consent opening the door to abuse, he grants the danger and treats law as the art of applying rules to concrete cases while guarding against slippery slopes. Common-law self-defense is his example: you need not wait for the bullet if someone is about to shoot, but the criteria are strict — immediate, direct force, as a reasonable person would read it, not a toy gun you should have recognized. Juries and custom tighten the standard over time.

When Patterson says blurry cases show the non-aggression principle is not a black-and-white absolute, Kinsella points to Randy Barnett’s distinction in The Structure of Liberty between abstract rules and legal precepts. The rule can be arrived at in the armchair, or codified after many cases. Applying it still needs judges and facts. Every legal system has continuum problems. A dictator can give bright-line answers, and those answers need not be just. Borderline cases are not, on this view, a special defect of libertarian law.

TRANSCRIPT FOR Ep. 50 – Argumentation Ethics | Stephan Kinsella:

Introduction to the Episode

0:00

Steve Patterson: Are there some ethical truths that are inescapable whenever we argue? Do we presuppose a set of values? And if so, do those values push you towards libertarian political conclusions? These are the questions I’m trying to answer on the 50th episode of Patterson in Pursuit.

Hello, my friends. Welcome to the show. I’m Steve Patterson, your host. Today we’re talking about political philosophy, political ethics, and we’re talking about a specific idea that I’ve gotten lots and lots of requests to cover. I am persuaded by libertarian ideas, really rather extreme libertarian ideas, and the natural question arises: why? What’s the justification for libertarian conclusions?

Now I have my own set of justifications, but I know lots of libertarians who are persuaded by what is called argumentation ethics, which is an attempt to make a rationalist argument for a particular set of ethical values. By rationalist I mean there are certain foundational principles that we discover that are inescapable, and then we use logical deduction to see what follows from there.

Now if you guys have been following my work, you know that sounds like it would be a natural fit within the worldview that I’m trying to create, but I struggle with accepting some of the foundational premises that are presented by people arguing for argumentation ethics. So I’ve gotten lots of requests from people saying, bring on Stephan Kinsella. He’s one of the more prominent libertarians who is a vocal proponent of argumentation ethics. So he and I had a fantastic conversation on the subject.

Now in the course of this interview, given that my guest and I are both on the same page on large parts of our political theory, if you’re not already down with libertarianism you probably won’t find those persuasive at all. So this is definitely a little bit more inside baseball for those who are more disposed towards libertarian conclusions. But even if you’re not in the libertarian bandwagon, I’m sure this conversation will elicit some insightful thoughts in your mind.

There are lots of show notes for this particular episode, so if you want to learn more about argumentation ethics, check out stevepatterson.com/50. That will link you to Stephan Kinsella’s page, some of the arguments from a gentleman named Hans-Hermann Hoppe, who gets a lot of credit for coming up with argumentation ethics, at least in this form. You’ll also find a link to the sponsor of this episode.

Defining Argumentation Ethics

0:28

Steve Patterson: Argumentation ethics is an attempt to ground libertarian ideas in a kind of inescapable rationalist framework, that there are these ethical principles that you cannot escape, just kind of like the principle of the law of logic, that you can’t argue that existence doesn’t exist. There are just certain inescapable things that you have to acknowledge if you’re going to be rational. And then supposedly the argument goes, there are also inescapable ethical truths, that if you discover what they are, they lead you to kind of libertarian conclusions.

Episode Sponsor Segment

2:44

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So I hope you enjoy my interview with Stephan Kinsella, who is a patent attorney, libertarian legal theorist, and one of the things that he’s written that I very highly recommend is a book called Against Intellectual Property. I haven’t done an episode on intellectual property yet on this show. I certainly will do one in the future, and maybe I’ll have Stephan back on the show to talk about it. But it’s become kind of standard canon in a lot of libertarian circles, and for good reason.

Fun and arbitrary trivia fact about my guest’s name today. If you’ve seen some of his writing, his author name is sometimes N. Stephan Kinsella. Hmm, what does the N stand for? Well, you’re about to find out.

Interview with Kinsella

3:56

Steve Patterson: Mr. Norman Stephan Kinsella, welcome to Patterson in Pursuit. It’s a pleasure to have you on the show.

Stephan Kinsella: Thanks. Glad to be here.

Steve Patterson: So I get a lot of requests from people to talk to different thinkers, and a big part of my audience is they come from a libertarian background. And when talking about libertarian issues, libertarian ethics, there’s this one concept that always comes up: argumentation ethics. And when I talk to people about it and they say, man, you got to have Stephan Kinsella on the show. So it’s a real delight to have you on.

I want to be totally in the rationalist ethics camp, and I’m hoping that after the course of this conversation I’ll be there. So what I’d like to start is, for all the listeners that aren’t already kind of in the libertarian circle, argumentation ethics is an attempt to ground libertarian ideas in a kind of inescapable rationalist framework, that there are these ethical principles that you cannot escape, just kind of like the principle of the law of logic, that you can’t argue that existence doesn’t exist. There are just certain inescapable things that you have to acknowledge if you’re going to be rational. And then supposedly the argument goes, there are also inescapable ethical truths, that if you discover what they are, they lead you to kind of libertarian conclusions. Is that a fair kind of summarization of the approach?

Stephan Kinsella: Yeah, perfectly right. Perfectly good.

Steve Patterson: Okay, so let’s start with that, just working through the basics. What then is this, the inescapable argument that leads us to some kind of ethical rationalist framework?

Stephan Kinsella: All right, so let me give a little background first, which is that this is a theory that was pioneered by Hans-Hermann Hoppe. And actually he would be your best guest on this, right? I mean, he is the guy that originated this theory in the mid-’80s. But I’m probably, next to him, the one who’s written the most about it. And he and I, I’ve also written a kind of a complementary theory of rights, which I came up with on my own. It kind of inspired by his, called estoppel. And I don’t know if we’ll get into that or not.

But so, before you start talking about the best proof of rights or libertarian principles, I think it’s, but we need to have an idea of what we’re, with what the whole subject matter is like. What is it we’re interested in? So first, I think it helps to clarify basically what we conceive of as libertarian principles. What are they, before we say that then how they’re justified, and what it means to justify, and what other approaches have been.

So if you want to do it that way, I can just kind of lay out.

Steve Patterson: If you think you can, yes. Then if you need to.

Stephan Kinsella: Okay.

Core Libertarian Principles

6:19

Stephan Kinsella: The way I conceive of libertarianism in its most sort of distilled form is, it is a, you can call it a political ethic. You can even call it a meta-ethic, because it’s really not a set of rules about how we should personally live, but it’s a set of rules about what the law should be.

Steve Patterson: Okay.

Stephan Kinsella: Okay, so, and this is what Douglas Rasmussen and Douglas Den Uyl, that’s how they characterize rights in the book Liberty and Nature. They’re Den Uyl, American libertarian philosophers. Anyway, you don’t have to view rights that way. That’s how I view them.

But in the non-aggression principle, I believe is core to what we believe, but I think it’s just a shorthand version of what we believe. It’s not an explanation of it. It’s just a shorthand. And what it really means is this. In the case of your body, in the case of any scarce resource, there could be possibly conflict between human actors, and property rules are just arrived at in society as a means of identifying who is the one person that has the right to control that resource, so that conflict can be avoided in the use of those resources.

Steve Patterson: Okay.

Stephan Kinsella: Okay. Now that’s basically what any legal system is. Even the socialist legal system specifies owners of resources, okay, whether it’s human bodies in the case of slavery, or someone in prison, or whether it’s other resources, and they’re like land or cars or food, things like that.

So the libertarian view is that we assign those resources in accordance with basically the simple principles of contract and first ownership, which is sort of Lockean in principle. So if something is unowned, the first person to start using it is the owner, until he transfers it voluntarily to someone else, which is what contract is. So with a couple of supplementary rules, right, like if you hurt someone and you owe them restitution, then they can take some of your property in that case. Okay.

But generally speaking, you can find out who the owner of a resource is by asking who has it now, who had it first, and was there a contract. So those simple principles give rise to them what we call the non-aggression principle. I think we call it the non-aggression principle because in the case of someone’s body, if you attack someone, that’s what the term aggression usually means, like attacking, physically attacking someone else’s body. That’s held to be a violation of their property right in their body. And then by extension we would say something similar happens if you use another piece of property they own without their permission. Okay, that’s trespass, but we lump it in with the concept of aggression as a type of shorthand.

Steve Patterson: Okay.

Stephan Kinsella: Okay, so basically you get from this the standard libertarian rules. If you notice, there’s a type of symmetry and a type of reciprocity in these rules, in that you are entitled to do to someone only what they did to you. Because if someone is not violating my property rights, I’m not entitled to violate their property rights. Okay, so if someone is publishing pornography or smoking marijuana, they’re not invading my property rights, and so I’m not entitled to use force against them, which means any law against those activities would be unjust.

I can insult them. I can berate them, because I’m not violating their property rights either. So there’s a symmetry. But if someone attacks me physically, they have used force against me, and now I’m entitled to use force against them, defensively, or even after the fact for restitution, or even for retribution, some would argue. Okay, so you see, again, there’s a symmetry there. And I think this is what libertarians like. That’s why we always have this sort of scalpel. Like every time a normie, we call him, right, a normal person, replace the law, you know, let’s just tax people, or let’s just ban this practice, we say, well look, you’re using force against them. Did they use force themselves first? Did they initiate force? And if they didn’t, there’s an asymmetry there, and that’s why we say that law is unjust.

Steve Patterson: Okay. This is, this NAP?

Stephan Kinsella: Yeah.

Steve Patterson: Yeah. This strikes me as kind of a Kantian principle, that there’s a kind of universal aspect to this way of conceiving about political ethic. Is that fair?

Stephan Kinsella: Well, I, it may be compatible with Kantianism, but all I’m doing right now is trying to sort of observe what libertarians say, and kind of condense their principles into more of a, just to figure out what their principles are, and just to restate them in a, you know, concise fashion. Okay, so I’m just trying to restate what they believe, not to justify it yet. Okay. I think you have to understand what they are before you start talking about what it means to justify.

I mean, so from your perspective, would you say that is roughly a summary of what the core of the principles are that most libertarians believe?

Symmetry and Reciprocity

10:27

Steve Patterson: I would say from my experience that encompasses at least half of the kind of arguments that I encounter when talking with libertarians. It comes back to that notion of reciprocity, almost getting at a Golden Rule mentality. Do unto others as you would have them do unto you, except kind of as a basis for a legal system. You know, don’t hit people, don’t take their stuff, and they’ll do the same to you.

I do think there’s another group of people that approach it just from purely kind of consequentialist ends, and they say, well, the only reason we’re into this libertarianism stuff is because it results in human flourishing, something like that. I find maybe.

Stephan Kinsella: Yes, yeah, a third or so, maybe a little bit more than that approach. Yes.

Steve Patterson: Yes. Okay.

Stephan Kinsella: Well, okay, look, but again, I think you’re talking about justifications more than the principles that they believe. I think, and personally, I don’t really, I’m not really persuaded that there’s a strong gulf between consequentialism and sort of a principled or deontological approach. I think they’re just different ways of looking at the same world. So I’m not surprised that they’re the same. But anyway, the point is, the typical libertarian, whatever his, even if he’s, I don’t know what the word would be, an atheist or agnostic in terms of, he has no grounds for his principles whatsoever, but he believes in the libertarian principles. He believed, you will hear libertarians, whether they’re consequentialist or not, they will routinely say, you may not initiate force. Just by saying the words, and you may not initiate force, there’s a, you’re recognizing implicitly a symmetry there, right? You can only use force in response to force.

Steve Patterson: Yeah.

Stephan Kinsella: So you can use force in response to force, but if someone’s not using force against you, you can only do other things that don’t result in force. So that symmetry is just present in libertarian ideas. I’m not really saying the justification is there. This is just what libertarians do believe.

Steve Patterson: Yes. Yeah. If we take it from that standpoint, that is pretty much ubiquitous, that I think every libertarian would agree with that notion.

Stephan Kinsella: Yes. And then you have to unpack what it means to say initiate force, because if I walk across your lawn at 2:30 in the morning when you’re sleeping, it’s not really the same as aggression, like me punching you in the head. It’s, we only call it aggression or force, I think, by analogy, because it’s a trespass. It’s a use of, the general case is this. It’s a use of someone else’s resource without their permission. That is, whoever owns the resource, including human bodies. If someone else invades the physical borders of that property or uses it without their permission, that is what is trespass, or that is what is aggression in a generalized sense. So this is just what libertarians believe.

Now I don’t know if you take your average liberal, or your average conservative, or fascist, or egalitarian, or environmentalist, and if you ask them, state what you believe, they could state it. And then if you said, now provide a justification, I don’t know if everyone walking around the earth is walking around with their set of beliefs in their back pocket and their set of justifications in their other back pocket. A lot of people don’t have justifications, or they’re not clear ones. And some libertarians don’t really have a justification. It’s just they think it comes out of their Christian faith, or they take it on faith, or they just have a personal preference.

Steve Patterson: Yes. And I think the way that you stated that earlier, probably most people in general, not just libertarians, would agree with this intuitive notion of, yeah, okay, I shouldn’t aggress on other people. I think that’s, not maybe not everybody, but I think a whole lot of people, even if they don’t consider themselves libertarians, would agree to that principle, at least.

Stephan Kinsella: Yeah. And I think that actually the justification project is not necessarily one that we even have to do. Some people are interested in it, and the reason is because one thing we libertarians can do is simply identify the fact that most fellow humans that live in society do believe in our core notions. Okay, however vaguely, however inconsistently, they do believe that basic idea: you shouldn’t hurt other people, right? And so the entire libertarian project, in my view, can be thought of as simply adding a little bit of economic literacy to the mixture, and consistency, right?

Steve Patterson: Okay.

Stephan Kinsella: And in fact, when you said most libertarians would agree with the principle as I specified it, I actually think that’s not quite true, because non-anarchists, that is minarchists, don’t quite believe that. So you could say that the principled, consistent libertarian believes that aggression is never justified. It is impossible to justify.

Steve Patterson: I think where the split comes with is when it’s treated as an absolute versus a principle. I think pretty much everybody would agree that the non-aggression principle is a good rule of thumb. I think where you get very strong disagreement is if that’s kind of an absolute thing, or if that’s.

Stephan Kinsella: Oh yeah, if it’s a rule of thumb. Well, right, it would, like Robert Nozick called side constraints. So rights are side constraints on what you can do, that they just cannot be violated. No, well, it would say they cannot be violated, but they may not be violated, right?

Steve Patterson: Right.

Stephan Kinsella: But so I would, yeah. So when you talk about it as a rule of thumb, that’s just a way of sort of putting a nice shiny gloss on what you’re really saying, which is, I’m against aggression most of the time, or some of the time. And you’ll see conservatives, and even liberals sometimes, will explicitly say something like this. They’ll say, well, we agree with you libertarians that liberty is an important value. We just don’t fetishize it, right? What they mean by that is like the Supreme Court doing some balancing tests of competing interests. You know, they want to take liberty into account, but it’s just one of many values, right, which is just a pretty way of saying, in some cases we’re willing to condone or commit or authorize the use of aggression against you if we don’t agree with you. Like, I’m going to bash you in the head in the end.

So in the end, even a minarchist ultimately is like this. They’ll say, look, I’m with you 99% of the way. I agree that most aggression is wrong, but we still need to tax people and blah blah blah for a minimal whatever. It’s like, yeah, but that is actually aggression.

Steve Patterson: Yes, but I think they would probably say, then I am not an absolutist on the principle, that I’m with 99%. It’s not, they would say it’s probably not a criticism of my ideas just because I give these little.

Stephan Kinsella: No, but when they say they’re not an absolutist, what they mean is they’re not against aggression. Okay, they don’t have a principled opposition to aggression. They think that in some cases it is permissible to initiate the use of force against innocent people. That is what they’re saying.

Now the Randians had this complicated dodge, right? They’ll look into context and all this kind of crap, and they’ll say that, well, properly understood in context, we need a government as the rational framework for our rights, and therefore it’s not really aggression, even though it is. So, you know, actually the Randians I think have a lot of good points, but their two main failings are on intellectual property, which is their worst, and on anarchy, which I think they’re quasi-anarchistic. They just don’t realize it. If you read the end of Atlas Shrugged, it’s basically anarchistic. So Rand was really wrong on anarchism and on IP. Other than that, a lot of her stuff I think is good.

Justification of Principles

15:25

Steve Patterson: But I ask you, so on that point, if I were to say something like, as a general rule, you know, I don’t support aggression against people that aren’t being violent, but I’ll make some exceptions. So I could say something like, you know, I don’t think you should put your hands on other people when they don’t give you permission to do that, but if somebody’s running out in the street, I might actually do that.

Stephan Kinsella: Yes.

Steve Patterson: So I would give an exception. Are you saying that that demonstrates that I support violence, or that that’s a reasonable exception to make? So I think most people kind of view it like that.

Stephan Kinsella: Yeah, I don’t, I think that’s wrong. I think that’s the wrong way to look at it.

Steve Patterson: Okay.

Stephan Kinsella: First of all, I don’t think that, no, I don’t think there are any exceptions. If there’s an exception, then there’s one of two things going on. And remember, that’s one reason I earlier said I think rights are meta-normative principles, or they’re principles. They’re not principles that directly govern individual behavior.

This is a brief aside, but most people, if you press them, and if you go through this, and I think most people, most libertarians, would, most normal people treat ethics and political ethics as sort of the same sets. So if they see something that they believe is wrong, like racial discrimination, then why not have a law against it, right? Or if they think it’s wrong to abuse your body with drugs, why not have a law against it? So they see these sets as the same.

Most libertarians, if you ask them, they would see the set of political ethics as a proper subset of ethics. So that is, everything that’s a rights violation is immoral, but not everything that’s immoral can be made illegal, right?

Steve Patterson: Okay.

Stephan Kinsella: Now most people don’t ever get to the point of trying to formalize it like that, but I think if you press them they would agree with that.

Steve Patterson: So you think that with the case of the pulling the guy from the street, that that would be a circumstance of immorality but not illegality, or vice versa?

Stephan Kinsella: No, because I actually disagree with this subset notion. I think that the sets are overlapping sets. Okay, because again, because I think the principles of libertarianism, while they can inform your personal ethics, they’re not the same as. Okay, so just because we say as a community of people that it’s a rights violation to do X doesn’t mean that it’s immoral for you to do X. For example, for the exact same reason that it’s not always moral to be within your rights.

If I insult my grandmother, or if I don’t let a starving neighbor come onto my property, you know, the neighbor whose kid has been wounded in a car wreck, I just won’t let them come into my house for ten minutes to call an ambulance. I can do that and be within my rights. If I see a stranger drowning in a pond, I don’t have a positive legal obligation to rescue them unless I pushed them in, but that might be totally immoral, refusing to help them, even though I’m not violating their rights.

But by the same token, it could be that it is not immoral in some cases to violate rights. The case of a friend about to commit suicide and you use force to prevent them, although there’s a different argument that that’s not even an exception that needs a justification.

So let’s give a couple of cases. The kid, the grabbing the kid, right? I don’t even think that’s a violation. I don’t think so. You said violence earlier. Of course libertarians are not against violence. We’re against the initiation of violence, right? And that’s again just a compact way of saying you can’t use someone’s property without their consent.

Now a minor is considered to be not fully compos mentis, right? So he has guardians that make decisions for him and on his behalf. And those guardians don’t have to be only his lineal parents. They can be others in the community that we assume the parents would consent to them doing some things in that emergency situation. So I think that in the case of saving the child, that the child is consenting to it, because his guardians would of course implicitly grant consent to that kind of action.

Steve Patterson: Okay.

Stephan Kinsella: What if, just like that’s like an adult that’s on his smartphone, you know, surfing. I’ve noticed on the sidewalks, people bump into you when they’re looking down at their smartphone. But if somebody’s, an adult’s on their smartphone and the bus is coming, and you go, hey buddy, and you grab them. I think in a case like that, it’s such an emergency situation, we don’t have time to have a conversation with someone and find out whether they really want to commit suicide, or whether they would consent to being briefly jostled to save their life.

So all you can do in the split second is try to use the crude language that we have, which is social conventions, right? Because this is all a matter of, when we talk about consent, consent has to be communicated by a public language. But language need not only be words, right? You could have two people that don’t even speak the same language get along with each other. So there’s always a background assumption of norms, customs, and things like that that inform language.

So I think when you see someone, a regular businessman on their cell phone, about to walk into the face of a bus that’s coming, and he’s obviously distracted, the assumption is that he’s implicitly communicating by his existence in a society like that, right, without walking around with a sign saying, hey, if you see me about to die, don’t rescue me. So he’s not changing the default presumption of what communication is, right? So basically my point is, most people would assume that the guy would consent to being rescued.

Steve Patterson: Okay.

Stephan Kinsella: So I think that’s the best solution. And I can’t imagine a jury punishing the guy, and you can’t even imagine a victim wanting to go after his rescuer. In the rare case when it was, he would probably himself be laughed out of court, or ignored, or looked at as a, you know, a troublemaker or something like that.

And but even if we say it’s an act of aggression to rescue your friend committing, who wants to commit suicide, because you think he’ll see reason in the light of day, right, or rescuing this businessman about to walk into the face of an Apache helicopter or whatever, even in that case, what you could say is the rescuer is willing to take the risk of some slight legal liability in order to do a good deed for someone else, and so he just hopes for forgiveness.

Steve Patterson: Okay.

Stephan Kinsella: And you know, that’s one way to approach that issue as well.

Steve Patterson: Okay, so let me ask you just on that question, then we’ll get to the argumentation ethics justification part.

Stephan Kinsella: Yeah, justification.

Steve Patterson: So would you say that if we’re going to be really strict in our analysis of rights, that in the case of pulling the guy, you know, out of the street so he doesn’t get hit by the bus, technically speaking that would be a rights violation, but it wouldn’t be something that’s immoral, and it would be under the assumption that the person would have permitted it, but if we’re going to be technical, it still is a rights violation?

Stephan Kinsella: No. If the assumption is he would have permitted it, and that assumption is correct, then it’s not a rights violation, because it’s consented to. So it’s not a rights violation based on the assumption of consent.

Steve Patterson: Because that seems like a dubious, if I could say, oh, I thought you consented to take my television.

Stephan Kinsella: All right, but I thought you consented to me taking your television, you know. Well, I think opinions among libertarians would vary on that. Okay, you could look, you could say there’s maybe three distinct views there. I mean, I have my own view. I lean a certain way. And by the way, I think these, we can from our armchair lay out different rules, but we’re not doing this completely in a vacuum. We’ve sort of seen these things play out through history, so we sort of have a, we see how society would tend to solve these things. And I think that’s probably what would happen in a pure private law society.

So in other words, I think that even if we have different arguments right now, you know, one or two of them is going to be settled on over time, and then you’re walking into this community and you know what the background expectations are in this respect.

In any case, I think that, so you could argue, you could do it like you did. You could say that, as the rescuer, I’m assuming the guy will retroactively say he consented and everything will be fine. There’s like a 99.9% chance, so I’m taking a very small risk that I am violating, like, in other words, it’s epistemologically or systemically unknowable whether I’m violating his rights. I can’t know until after the fact. But I’m going to take the chance. That’s one way of looking at it, and I think in some cases that is what is happening.

I think in the case you mentioned, I personally would just say, look, the guy by his own action is putting his fellow neighbors into a position where they have no choice but to make a split-second decision, and it’s, if anyone, it’s his fault for putting them in that area of uncertainty. Okay, so then we have to say, well then, what was communicated, if anything was communicated? I would say that there is actual consent. And even if the guy later says, look, I don’t want to ever be rescued, I’m a 1% minority outlier, or a one out of a million outlier, I think we say, well, you’re just wrong. You did consent. If you don’t want to consent, you need to have some kind of special clothing, that, you know, do-not-resuscitate type idea. You can’t expect everyone in society.

And by the way, this also, we never specify whether the property is public or private when we talk about these things. Sort of like we imagine this sort of this ghostly realm of non-vaguely specified walking ground, that’s, you know, there are mists everywhere and no one owns that, you’re just apt to be buffeted. But in reality you’re always, especially in the libertarian society, you’re always in a private property setting. So either you’re on his property, or he’s on your property, or you’re on the shopping mall’s property, and there are already some rules laid down for this kind of behavior, if only implicit rules. So really the result might be the rules of the property owner.

Steve Patterson: So if we were to take that line of reasoning, though, couldn’t you see in a line of argument that said, you know, oh, I groped you inappropriately because I assumed that you were consenting based on, you know, your behavior and something like that? Doesn’t that kind of open up the door to all kinds of claims of?

Stephan Kinsella: Yes, doesn’t it? It does. But I think that’s why the law is the sort of the art of actually making concrete decisions about concrete cases, right, by applying rules to them. And you have to take into account the dangers of how just a rule that could lead to a slippery slope.

So, you know, for example, in the common law, and I think most libertarians would agree, that you don’t have to respond, you don’t have to wait for someone to physically attack you before you respond. If someone is in a context where they’ve indicated they want to shoot you, and they raise their weapon, and they cock the trigger, and it looks like they’re about to pull the trigger, and they have every intention of doing so as far as you can tell, then you don’t have to wait for the bullet to start heading your way. You can raise your gun and shoot them first. That’s preemptive, right, preemptive force. But the common law has drawn a very strict set of criteria around when you can actually say. It has to be an immediate, direct force, something that’s like the reasonable everyday man would interpret that way, et cetera, right?

Look, if the guy’s a raving lunatic, or he’s got a red tip on a plastic pistol where you should have known, then you wouldn’t be. So these, they do require judgment of the jury, or the community, or the judge, and over time these standards do develop, and people start adjusting their behavior to be guided by them.

Steve Patterson: So in those circumstances, it doesn’t seem like, when it’s clear-cut, it seems like the rule is something that emerges, or it’s something, you know, we’re talking about a reasonable man, that.

Stephan Kinsella: I think that’s correct.

Steve Patterson: But it lacks the kind of argumentative power of saying this is the black and white rule.

Stephan Kinsella: It does.

Steve Patterson: So if that’s true in those circumstances, why wouldn’t somebody just say, well, that’s true of all law. All law is, all property rights and rules are just kind of communally agreed to?

Stephan Kinsella: Well, that’s a, let’s, that’s a whole different issue, getting into the social contract and those kinds of issues. And I would do two things here.

Number one, I would say, well, Randy Barnett, in his book The Structure of Liberty, he talks about this. He’s an anarchist, a libertarian scholar, and what he tries to do is say that he distinguishes between abstract rules and legal precepts. Now abstract rules are these things we would come up with from our armchair, okay, or at least we would find them deductively after seeing inductively many cases over the centuries, and we sort of, you know, get rid of the inconsistencies and formalize and codify it. But when you have to apply them to particular cases, that’s more of a concrete case, and you have to have judges and all these people take the facts into account.

But the point is, compare this to any other system. I mean, any system, whether it’s socialist or welfare state or democratic, any type of political legal system is going to have to deal with borderline cases, continuum issues, right? And just because those exist in life, and just because libertarianism doesn’t have a deductive answer you can always answer from your armchair, doesn’t mean it’s an inferior theory, because every theory has these issues.

You could have a dictator, a Führer, just decide everything. It would be totally black and white. Just come to him and he’ll give the answer. A wins, B wins, C wins, he wins, that’s it. I mean, you would know who the owner is and who the winner is. It would be bright line, we would call it, but it wouldn’t be just, or wouldn’t you have a reason to think it’s just?

Steve Patterson: Okay.

Natural Law vs. Utilitarianism

34:03

Steve Patterson: So this is a perfect segue into part two, talking about justification. So we have the general intuition about non-aggression and respecting other people’s property, and now we want to seek the justification through argumentation ethics. So how, make that transition for me. How do we do?

Stephan Kinsella: Yeah, so let’s talk, so let’s talk about, like we said earlier, maybe not everyone has a justification, or there’s only vague, or I would say the prevailing view among most people is that it’s either common sense or it’s pragmatic, right, or it’s based upon common sense morals, or even religious morals. Basically the natural law way of thinking versus the pragmatic, utilitarian, or consequentialist way of thinking, right?

So I would say that, in the first, I would say the libertarianism started in the mid-’50s, right, with Ayn Rand and Leonard Read and Rothbard and these guys, and the modern libertarian movement. And for the first 30 or so years of the movement, maybe first 30 or 40, probably the prevailing ethos would have been the Randian one, which is more of a natural law one, right, which is the idea that certain natural principles of ethics or morality in the universe, and this is whether you’re an atheist or not, by the way. The non-atheist maybe have an easier time of that, because they think that God basically sets up what’s right and wrong. It’s sort of somehow in the structure of reality. But the more secular natural law types think it’s just inherent in reality or something like that.

And their argument is something like, humans have a nature, the way, by the way, we’re organized, and our social nature with each other, and the laws of economics, these all combine to say that, you know, you just shouldn’t, you shouldn’t do basic things. And like I said, libertarianism just makes those more consistent and applies a little economic logic to it. And you’ll even hear the term like, oh, you know, the basic laws of nature are engraved on your heart. This line is used sometimes.

You know, there’s a doctrine of the law that ignorant of the law is no excuse, which in today’s legal system is a travesty, because there are so many laws no one knows what these fake laws are. All right, so ignorance of the law should be an excuse. But in a natural law system where the only thing that’s illegal is, you know, rape, murder, crime, I mean, sorry, theft, then it’s okay to hold someone liable for those actions even if they claimed they didn’t know, because you say everyone knows this. It’s written on your heart, man. Everyone knows that you shouldn’t hurt other people, right?

So that’s one kind of argument. I don’t really know what they’re drawing on. Are they saying God put that in your heart, or it’s just common sense? So they don’t. But this more strict version of natural law says that because of our nature we shouldn’t do certain things, right? Certain things are conducive to your flourishing, like you were getting at earlier.

The problem with this argument from the Hoppean point of view, and the Kantian point of view, and the Humean point of view, I should, I’m not sure about, Humean for sure, is the is-ought gap, right? So is the idea that you cannot get an ought, or a normative, or a moral statement, just from your statement of facts. You have to have an ought somewhere inserted, right? So you can’t say, because man is what he is, therefore he should do X, right? That’s, and I agree with that. I think the is-ought gap is logically unbridgeable. I do agree with Hoppe on this.

Now some of the more sophisticated Randians, like Roderick Long, they try to get around this by what they call an assertoric hypothetical. I don’t know if you’ve heard of this, assertoric hypothetical. They say, no, it’s not an if-then, it’s a since-then. So it’s like, since we all agree with the following principles, therefore, which I think is perfectly valid. Most people do believe in certain core principles. You could say, since you and I both agree that we want humans to flourish, since you and I both agree that you shouldn’t hurt people without a good reason, therefore, you know, then you conclude, you go on your libertarian and your economic reasoning.

It would be very similar to going to a Star Trek convention, and, you know, it wouldn’t make sense for two people at a Star Trek convention to argue that people shouldn’t like Star Trek, because they are all, they’re both fans already, right? All right, so you say, look, since you and I are both Star Trek fans, I think that this movie is better than the other one, or whatever, right? But if you’re talking to a non-Star Trek fan, they say, I don’t like movies at all, I don’t like Star Trek, so I don’t think either one’s better. We don’t have to decide, right?

But if you’re talking the same fundamental language, which I’ve called something called Grundnorms, after Hans Kelsen, and Grundnorms are like sort of core basic ethical or legal principles. It’s analogous to the a priori type, or basic truths that I think you’ve talked about as well, you know, just the kind of core logical truths that we can identify about reality and build up from there. There’s sort of like fundamental elemental principles.

In any case, the problem with the Aristotelian approach, I believe, is that you have to introduce an ought somewhere, and then is it just arbitrary? Is that just subjective preference, whatever? So Hoppe, the argumentation ethics approach, is a different one.

And let’s talk about consequentialism. So consequentialism is just the idea that we ought to adopt rules that, well, utilitarianism is a sub of consequentialism, I believe, right, and that says you should adopt a rule that benefits, that does the greatest good for the greatest number, right? And I think, I don’t think we need to elaborate the problems with that. Like, just from Austrian economics, right, the problem that you can’t quantify preference or utility, sorry, and you can’t intersubjectively compare it. And anyway, the statement is just arbitrary. You’re just stating that this is preferable. Let’s say it would help a thousand people to give them a million dollars each by robbing Bill Gates of it. It might be true, but why is it right to rob from Bill Gates? It still doesn’t answer that question. So it sort of makes it, makes that more, it makes it a hidden moral leap.

Steve Patterson: Okay.

Stephan Kinsella: Now I think we’re ready to talk about argumentation.

Steve Patterson: Because if you want, yes.

Stephan Kinsella: So what Hoppe did. So Hoppe, you want a little background on Hoppe, where he came from and how he arrived at his ideas?

Steve Patterson: Well, I think we should just go straight into the argument.

Stephan Kinsella: Given, okay.

Steve Patterson: I’ve still got lots of good questions for you.

Stephan Kinsella: So, okay. All right.

The Argument for Rights

40:20

Stephan Kinsella: So Hoppe’s argument is this. The only way to justify propositional truth, that is, claims about the universe that are true, is in argumentation. And he believes that there’s what we call an a priori of argumentation. He draws upon Jürgen Habermas, who’s a famous socialist German philosopher. It was his PhD teacher, actually, and Karl-Otto Apel, who was a colleague of Hoppe’s. And this is called a priori of argumentation, or discourse. And the idea is that you could never deny that to be true. You can never deny that all truth claims have to be settled in the course of some kind of discourse, argumentation, because you’d be engaged in a discourse of argumentation in the attempt to say that it’s not necessary to do so.

Okay, so it’s, you can see how it’s similar in structure to some of, like, the Misesian and even Randian type a priori type arguments, and right, like man acts. You can’t deny that man acts, because that’s an action.

Steve Patterson: I said, right, right, right.

Stephan Kinsella: So their basic idea is that anything that we want to decide upon is true, anything that’s a contestable proposition or claim, has to be decided in the course of an argumentation.

Okay. Now Hoppe’s sort of a unique spin on it, after being made aware of kind of Mises’s views on economics and the nature of scarcity in the world, and Rothbard’s views on rights, was that you could fashion this type of argument into a defense of libertarian principles.

Steve Patterson: Okay.

Stephan Kinsella: Okay. Then what he does is he says, so every, you can only know what’s true or not in the course of an argumentation. Now if it’s a disagreement over what a factual matter is, right, like a scientific issue, that’s called a disagreement, and again we have to have discussion in this course to figure that out. But in the case of physical conflict among people, which again is what rights exist for, to solve the problem of conflict in the use of scarce resources, in the situation where there’s conflict, argumentation is designed to determine how to resolve the conflict. That’s what it is.

So whenever we talk about any given law or possible right, that discussion itself has to be done in the course of an argumentation. Okay, so his basic insight is this. Argumentation is not just some free-floating affair. It is a practical affair in the real world, and argumentation itself is not value-free or norm-free, because it has some presupposed norms built into the very structure of argumentation, because of its nature.

Because, so argumentation is, think of it this way in terms of logical subsets. Argumentation is a type of speech act, and a speech act is a type of action. So it’s all in that framework. So you have action, and one subset of action is speech acts. Like, not all actions are speech acts, and not all actions, or some actions are things other than speech acts. You know, if I’m spearfishing, I’m not speaking, right? And if I, and then one type of action is speaking, but not all speaking is arguing. You know, if I’m just having a conversation with you, or if I’m, you know, reciting the lines for a movie play or something, I’m not engaging in argumentation, where I’m not, to have a discussion about a contested issue where we’re trying to figure out what the truth of the matter is, right?

So a proper subset of speech acts would be argumentation, and that’s the one that always has to happen whenever we have a disagreement about what the right or the wrong thing to do is.

Okay, so the kind of general framework is that whatever the normative or the ethical presuppositions of argumentation per se, as an activity, are, then any norm you’re trying to justify would have to be compatible with that. So that’s sort of the core initial insight he has there. If there are some normative presuppositions of argumentation, you could never argue for something that contradicts that, right? It’s just like you could never argue with a fellow Star Trek fan that people shouldn’t be Star Trek fans, in a sense, because they both suppose that they love Star Trek, right?

Steve Patterson: Okay.

Stephan Kinsella: So what are some of those norms that are presupposed with argumentation? Okay, that’s why you have to say, well then, what is argumentation? It’s a practical thing where the arguers are both trying to find the truth, right? That’s number one. Their goal is honesty in truth, and therefore consistency and logical consistency. But also there, you have to draw a distinction between coercing someone and free choice. So that, so one presupposition is that each person is not coercing the other to accept their claim. I’m not saying I think it’s A, you think it’s B, but if you don’t agree with me I’m going to bash you over the head with a sledgehammer at the end, because then I’ll just, I’ll just confess and say you’re right to avoid, but then we’re not engaging in argumentation. It’s just bullying or coercion.

So one presupposition is basically peacefulness. The participants are agreeing to effectively respect the bodily integrity of the other. They are not coercing them.

Steve Patterson: Okay. What about, so let me stop you there. What about if they’re talking, what about if they’re arguing about what happens at the end of their argument? So if they’re arguing, saying, once we stop respecting each other’s rights, or, you know, if you lose this argument I’m going to take your money, or if I lose this argument you take my money.

Stephan Kinsella: Well, first of all, that’s what every argument is about, being outside the argument. So in other words, we’re living in society peacefully or not, whether speech flowed. Now we’re living together in some kind of community, in society, right, and then a dispute arises. I mean, we’re going about our business, non-argumentative. We’re not engaging in argumentation all the time. Most of, you know, we’re making, well, but the point is, the entire reason that you engage in a normative argumentation is to settle something that will be true after the argumentation is over. So you get the argument, you have a conclusion. You are trying to come up with a principle that would apply outside of the field of argumentation.

So that’s one criticism of this approach that Bob Murphy and Gene Callahan and others have made. They say, well, it’s only true during the argumentation. It’s like, and as Hoppe points out in his recent talk on this, if that were true, well then so is your criticism. In other words, your criticism of my argument, it’s only true while you’re making the criticism, and as soon as you’re done talking we go back to the point, we go back to the status quo where my argument was right.

I mean, whenever we have a discussion, we’re always trying to come up with rules and facts that apply outside of. You know, if you and I want to discuss whether the moon is made of cheese or not, we’re not trying to figure out whether the moon is made of cheese for the duration of our argument. We’re trying to find out whether it’s really made of cheese.

Steve Patterson: Okay. So let me rephrase that, and if I do it incorrectly, then correct my error. So to the extent that one is engaged in true argumentation, you might say it is by definition something that is inescapably peaceful. Now that doesn’t mean you’re restricted from knocking the other person on the head. It just means that by definition, if you’re doing that, you have, you’re not arguing.

Stephan Kinsella: Yes. And it means you can’t, and it also then, it means you can’t justify it. It doesn’t mean you can’t do it. It just means you can’t justify doing it. So this way you have to distinguish in a binary way. Whether, you know, establishing that there’s a right doesn’t mean it’s going to be respected. It just means the action that violates the right can’t be justified.

So if I’m a person and I want to use your body or your property without your express consent, right, against your oppositional claims, I’ve got two choices. I can either just do it anyway, right? I can, and give up the attempt to reason, or I can justify it. But to justify it I have to be able to give reasons in an argumentation.

Now from the point of view of the other person, you view people in two categories, either like animals, or what Hoppe calls technical problems, or as rational people. If they’re rational people, they’re willing to consider evidence and arguments, right, and reason, and respect your right to bodily integrity during the course of an argument, at least. Okay, so you have to treat. So just because there are some people that are criminals out there, in a sense, doesn’t mean argumentation ethics is wrong. It just means that it is possible to violate a right. These are not physical causal walls that can’t be violated, like gravity. They are normative laws that tell you what actually is justified. It doesn’t mean that it actually can’t occur.

Steve Patterson: Okay.

Stephan Kinsella: But we’ve missed a second, so let me just finish quickly and we can go. So you can see how this rendition of the argumentation ethics approach so far, you can see how bodily rights come out of that, right? So basically you have to respect each other’s bodily integrity, which implies that you both are recognizing your self-ownership and the other person’s self-ownership, which is one of the core libertarian principles.

Steve Patterson: Okay.

Stephan Kinsella: But the other part of libertarianism is also the right of libertarians to own things outside their body, private property, resources that they appropriate. And then Hoppe’s argument goes on to extend it to that case, where he points out that argumentation, it’s not just your body. This is a practical affair in the real world. You had to actually get there. You have to survive. That requires resources. You have to be standing somewhere when you make your argument, right? So there’s all these uses of resources that are also presupposed in the course of argumentation. And, you know, 95% of the time the argument is about one of those resources.

So, okay, the dispute is about, you know, who gets to control this bank of the river, who gets to control this field, who gets to control that plow that I made and that you took from me, things like that. So when two people enter into a discourse about that, they are both presupposing, number one, their self-ownership, which implies certain rules, right? It implies this sort of first-come rule, first come, first served rule. In other words, one inherent aspect of the entire notion of property rights is the idea that a latecomer has to have inferior rights to an earlier comer.

If you think about the very nature of property, it has to have this latecomer rule embedded in it, because if latecomers don’t have worse claims, and by latecomer I mean, someone currently is recognized as the owner or the possessor of something, a latecomer, someone who comes on the scene after and claims superior rights to the resource. Okay, if latecomers did not have a worse claim, you could not have property rights at all, because it would just be a world of might-makes-right, and you would again be back to the pre-law, pre-right situation.

So the latecomer rule has to be embedded in any property ethic. Whoever the owner is has a better claim than someone who comes later and just says, I want it because I prefer to have it. So therefore, when you have two people asking to be assigned the ownership rights of a resource, they’re recognizing the principle of ownership, which recognizes the principle that earlier users have a better claim than latecomers. And then the dispute becomes a factual matter about which one was the latecomer in this particular case. Whoever the evidence indicates had a better claim would be recognized as the owner.

Steve Patterson: Okay.

Stephan Kinsella: Okay, so that is how the, I think that is sort of the essence of the argumentation ethics approach. Now the point you brought up about what after the argumentation ends, those are sort of later criticisms that came, and that have been dealt with sort of in an elective response-reply type fashion. But the basic core of the argument is that all normative claims have to be settled in an argument, and argumentation itself is a peaceful, cooperative activity in which bodily integrity, or self-ownership, and the right to control resources which are necessary for the argumentation even to have happened, are presupposed. And therefore any ethic that you propose during an argument that is contrary to these things could never be justified. There’s a practical or performative contradiction, Hoppe would say.

Steve Patterson: Okay.

Stephan Kinsella: And therefore, if you advocate a socialist ethic, then you’re advocating something that’s incompatible with the presuppositions of your argument, and it’s just a contradiction. And therefore no socialist ethic could ever be advocated. It could never be justified.

Steve Patterson: Beautiful. Okay, so that is a, I think that’s a great summarization.

Debating Argumentation Ethics

47:38

Steve Patterson: Now I want to ask you some of my skeptical problems with this, and I’m ready to be convinced, because I love the conclusions. I love that it’s rationalist, which I’m very disposed towards that type of reasoning. But here’s one of the areas that I don’t see the connection.

Okay, so I am totally on board that in the process of arguing, you are inescapably in control of your lungs, your vocal cords. You’re demonstrating some kind of control over yourself when you argue. How does that get you, though, to the concept of legitimate ownership? So if I were to say something like, it is true that in the process of arguing you must have control over your vocal cords, but that doesn’t mean there’s any such thing as property. There’s no such thing as legitimate property ownership, or anything like that.

Stephan Kinsella: Well, so here’s where I think we have to really grapple with the distinction between causal laws, or the, you know, the factual world, and normative things. When we establish a normative rule, it’s not like a law of physics where you can’t violate it, right? What are we really asking? So what does ownership really mean? And this really gets back to justification.

So if I say I have a right to do something, what I mean, what I really mean, and this is where I think you have to get more technical. I think what you’re apparently saying is that someone else’s propositional argument, that what you’re doing is wrong, cannot be justified. That means they can’t give a coherent argument against it. Okay, that’s a little bit tight. I think that’s really how you have to unpack the nature of what rights are.

But you have to remember that in a society where there is the actual factual possibility and reality of conflict, whenever people come together to try to find a rule or a norm to solve this conflict, the entire endeavor of that argumentation is an attempt to find an owner. Now an owner means someone who’s going to be recognized as having the right, the superior right, to control the resource. So that’s what they’re trying to find out.

Steve Patterson: What if it was just about, yeah, what if it was about trying to find a controller rather than an owner? So not somebody that has a right, just somebody that actually physically gets that resource.

Stephan Kinsella: But well then, I think language here is maybe the problem, because if you just want to ask who the, so in the law we distinguish between possession and between ownership. So a simple way to look at it, not exactly technically accurate, but would be, possession is the actual control of something, right, and ownership is the right to control. So you could, in that sense, you could distinguish between an owner and a possessor.

So if I have a knife and I’m the owner of the knife and possessor, and you take the knife from me, you steal it, now you possess the knife, but I still own it, right? So, but if he’s just, so if the dispute is a factual dispute about who is the possessor, well, that’s just not normally interesting. I mean, why would you have a dispute about, so you took my knife and we go to court to ask who has the knife? You see what I’m saying?

So what you’re trying to do is, you’re trying to, when you say we just want to know who is the controller, I think you’re really talking about ownership, because we wouldn’t really ask who is controlling it factually right now. It’s going to be obvious who controls it. There wouldn’t be a dispute if someone didn’t have control of it and someone else wanted it.

Steve Patterson: So is the claim then that ownership is inescapable, or is it that control is inescapable?

Stephan Kinsella: Well, or possession is. Yeah, control or possession correspond to the Austrian, Mises’s, or the praxeological concept of action, right? When in action you employ means, employ scarce means, to achieve ends. Employing means is the dominion or use of something in the world that causally interferes with the way the world works to get you what you want, right? That is the use of something. That is what employment of means is. So that’s just a, so for example, Crusoe on a desert island, right? He engages in human action. He doesn’t own anything, because there’s no other people he would have a right claim against. He controls some things. He might build a hut, so he’s got use of these things and control. I mean, he might leave his fishing net on the other side of the island, and it’s not within arm’s reach, but he can go use it when he needs. It’s available for his use.

When other people arrive on the scene, then there’s an additional problem he has to face. Well, there’s additional benefits he gets, too, right? He has companionship. He has division of labor. He has the possibility of trade, cooperation, et cetera. But he faces an additional problem. There’s one more danger in the world now that he has to face. Before, he only had to face tigers and mosquitoes and starvation and droughts and all this stuff, right, and disease. But now he’s also going to face the possibility that there’s another human actor whom he may have conflict with, who may want some of his resources.

So he wants to possess and control a resource, but he wants to do so in a peaceful and quiet way, where he doesn’t have conflict with his neighbor, so that they can have trade and harmonious relationships instead of continually physically fighting each other. So if other people feel the same way, they come together in society and they attempt to come up with property laws, property rights. See, that’s what, when you say ownership and all that, really means is a property right. And every time we say the word right, a property right, all rights are property rights. All laws are based upon some implicit conception of property rights. All political theory, all legal theory, it all comes down to property rights. Who has the rightful ownership or control of a given resource?

Steve Patterson: Okay. So is the claim then that really, even more fundamental than ownership being inescapable, is the claim that rights are inescapable?

Stephan Kinsella: Well, ownership means property rights. And whenever we have a normative dispute about a conflict over a resource, the participants in the dispute, and everyone who’s paying attention and arguing about it, they are all themselves talking about property rights. They’re just disagreeing over who should be the owner of a resource. But none of them can dispute the concept of ownership.

Steve Patterson: So you could have people.

Stephan Kinsella: Go ahead.

Steve Patterson: Well, I was going to say, you could have people that are not interested in this process, and these are basically renegade outlaws, or renegades.

Stephan Kinsella: And again, you just have to treat those people as a technical problem. They’re like very smart monkeys. They’re just like smart monkeys. And so that’s how, in fact, that’s how I view the state. You know, that’s how I survive in my mind as a libertarian. I just view the state as a type of force we have to deal with.

Steve Patterson: So how would you deal with the claim, then, that there’s no such thing as rights, or that rights, so this is kind of halfway my position, that rights, yes, concepts that, yes, look, if everybody agrees to play by the game of acting as if we have rights. While I love the conclusions, I think it’s a very logically consistent theory, but that still doesn’t get you to this inescapability, if rights are just a concept.

Stephan Kinsella: I thought you were going to say, if everyone agrees to play by the game as if we have rights, then effectively we do, because that’s what I would say, in a sense. And I wouldn’t disparage you by calling it a game, though, right, because that implies a type of moral cynicism or moral skepticism that I don’t have.

So the entire question, do rights exist, yeah, things like this, I think that’s fraught with difficulty, because it plays into scientism a bit, like you’re trying to treat rights, and when you say it’s just a concept. Well, let’s be crystal clear. All of these things, right? I think then you have to have a whole theory of concept formation and epistemology, which is why I mentioned to you, previous to our conversation, a lot of Rand’s approach to concept formation, and the way she just approaches knowledge, I think is one of the best that I’ve seen. I don’t know if you have to go that way.

But so I would view that, I would just try to look at this simply and realistically and clearly, and have clear terms. So I would say that we are rational beings, right, and we have the ability to have knowledge about the universe, that is, factual knowledge and other knowledge. And our minds are complicated enough where we grasp so much. I mean, look, we have perceptual data. That’s all we have, I believe, the five senses, as far as we know. And our brains integrate those percepts, as Rand would say, into concepts, and the concepts lead to higher-level thinking. And then to communicate this and to think with others and to make it more streamlined, we have language. So you have language that has words that correspond to concepts. So to say something is just a concept is kind of misleading.

Steve Patterson: I mean, well, so let me give you an example, though. So if I were to say something like, if I go to a chess tournament, there are rules of the game I have to follow. There’s good social rules if I want to participate, and I want to participate because I like going to chess tournaments. But the rules aren’t something that are inescapable. I can just not follow them. I can reject them consistently. And that sounds like the claim is that with the argumentation ethics, it’s not something that is escapable in the same way as the rules of a chess tournament are.

Stephan Kinsella: It’s not escapable, because all truth claims have to be decided, or decidable, in argumentation. And therefore, if there are any particular ethics that come with argumentation as an activity, then that does limit the universe of possible claims that could ever be justified.

Steve Patterson: If you accept that there are such things as rights. I mean, is the, what is the, so.

Stephan Kinsella: Okay, okay. Yeah, well, I look at it the other way. I think rights sort of as an outcome of a way of thinking about what’s justified. That’s just a conceptual term we have applied to it. So for example, the entire libertarian claim could just boil down to, you can never justify aggression. Okay, let’s just assume we know what aggression is. Aggression cannot be justified. Now what that means is, aggression can’t be argumentatively justified, because every justification has to be done argumentatively, right?

Steve Patterson: Okay.

Stephan Kinsella: So when you say aggression can’t be argumentatively justified, what you’re saying is that actual people engaged in an actual argument are making certain presuppositions, as a nature of the activity, the argumentation. That means it is literally and logically impossible for them to justify certain normative claims that would contradict the presuppositions of the argument.

So to my mind, the only disagreement really that is left, if I say someone like you could have, like, as a libertarian, is, do you believe that argumentation necessarily has certain normative presuppositions or not? So like in the Murphy-Callahan debate that I had, they seem to, they seem to agree with me that they agree that argumentation has some normative presuppositions. They weren’t clear about what they were, and I don’t think they understood the implications of them saying that. But once you admit that, the game is over.

Steve Patterson: Well, so let’s say I don’t admit that.

Stephan Kinsella: So if you don’t admit that, and that’s where the real dispute lies, right? But if you don’t admit that, so then I would, you know, logically classify people into different camps. And then at that point, I mean, if you don’t even want to argue at all, then you’re just a brute. I mean, I just have to treat you as a technical problem, right? Just like, you know, I can argue with an IRS agent about why taxation is wrong, and he can basically agree with what I say, but say, anyway, pay your taxes. I’ve just got to regard him as a threat and keep an eye on him, right? I got to keep my hand on my wallet.

Steve Patterson: Well, so I can say coherently, though, that in the process of arguing you demonstrate possession of your body, but I can also coherently say, in the process of argument, there’s no such thing as legitimate ownership.

Stephan Kinsella: Yeah, yeah, I think, yeah, I get what you’re getting at. What you’re, I think what you’re thinking is that you don’t have to make any normative claims when you argue.

Steve Patterson: Let me ask you, though. So when we’re talking about, you were talking about justification, and you said rights are kind of an, maybe an outgrowth of justification, or something that follows from justification. Where do you get this concept of justification? Well, if I’m a justification skeptic and I say there’s no such thing as any kind of objective justification, how would you respond to that?

Stephan Kinsella: Well, then you would lose in court. If you really don’t want to object to my taking your property, then I’ll just take it. Well, but if you want, in other words, if you want to mount, if you want to mount the sense of, you’re right. If you want to take my stuff, or if you want to keep your stuff, and we have a contest, then you’re in effect saying, I’m the owner, not you. You can’t, it’s not like saying, but you’re the case, if you accept this idea of ownership.

Steve Patterson: But if I’m an ownership skeptic, and I say all ownership is, as a concept we come up with in our mind, because it benefits society if we all agree that there’s such a thing as ownership, that, right, I’m kind of acknowledging that there is such a thing as a concept of ownership that has logical implications if you agree to it. But I’m saying really it’s just, it’s kind of an agreement that sometimes I’ll follow and sometimes I won’t.

Stephan Kinsella: Well, I guess you could. It’s convenient to come up with a situation where we’re like these angelic beings floating up in the clouds, just having an abstract argument about what these silly humans down on the earth, squabbling over resources, are arguing about, right? And you can say, well, I just, it’s just game play. It’s a game. I’m going to reject it. But the point is that in any actual dispute about the natural conflict over any actual resources, the two or more people that are part of the dispute both actually are claiming ownership of that resource. Okay, so I don’t see how they can claim ownership of it and then deny the concept of ownership.

Steve Patterson: Okay. Okay, so what about this? How about this example? Is it possible for me to, so I’m going to try to coherently argue, including the concept of ownership, but get to a non-libertarian conclusion. Let’s say that I say everybody that is under four feet tall, oh, yes, or everybody who is over six feet tall, I’m taking 30% of their income. That’s not a libertarian principle. Is that incorrect?

Universalizability of Norms

1:04:34

Stephan Kinsella: Yes, and we didn’t get into that at all. That is the core part of Hoppe’s argument. So what he goes into in his argument, and this is where he gets a little Kantian, right? He says that there’s something called the universalizability requirement. Okay, when you’re in a sincere, honest discussion about what rules are going to be the adopted and just rules, you have to adduce reasons for your position. They cannot be just arbitrary.

Okay. Now to me, this is something I think it took me a while to realize, because it’s kind of subtle. But people sometimes will say something like, well, what’s the argument for the universalizability principle? Yeah. Okay, in the, the universalizability means you can’t have what was the opposite, which is called particularistic rules. A particularistic rule is like what sort of what you just said. It’s saying like, okay, you and I both want ownership of this house. My argument for why I get it is because I’m me and you’re not. See, that’s a, that’s particularistic. So you’re not giving a reason, what Hoppe would call grounded in the nature of things, some objective reason that we can both point to and see as the explanation.

Steve Patterson: So let’s make it so, universal. We’ll say all people over six feet tall, because of their superior ability to see over obstacles. That’s the universal rule, and they’re not talking about individuals, though I happen to qualify. Would that be incoherent?

Stephan Kinsella: Well, I don’t, I mean, I think personally that I don’t see that winning over people in arguments, because it’s, you are finding a distinction between people, but it’s a distinction without a difference. In other words, there’s no connection between that ability and the ability to own a resource.

So I would say this. I don’t think we have time to go into this whole thing, but there is an entire aspect of the argument that deals with the need for making universalizable norms. So as Hoppe, so let me give the example Hoppe, he gives the example of, you can avoid the particularistic fallacy, so to speak, by just being clear. You could say something like, all redheads, right? Then it’s, but then it’s just arbitrary. And to the extent your rule is arbitrary, you are literally not giving a reason. And if you’re not giving a reason, you’re not engaging in argumentation.

Steve Patterson: Okay. Essentially. Yeah, I’ve got a better one for you. So unless this is much more controversial. Let’s say everybody with an IQ under 80, they owe 50% of whatever they make to people with IQs over 120. Now the reason is because the people with the higher IQs can more accurately, you know, and make sounder investments, which makes everybody wealthier, and then other people would just squander their money. So that’s at least a line of argument that doesn’t seem totally arbitrary.

Stephan Kinsella: Well, or just take it to the extreme. Yes, you can, we can have slavery. You could have subsistence labor. The superior people own the inferior people because they know better than the worse. I mean, you could take this to the extreme, right?

I think the problem with those arguments is they’re incompatible with the more basic presuppositions that already have to be agreed to, which is basically, any person, like they say, that’s capable of engaging in argumentation, they have that kind of rational capacity, right? They’re basically a human actor in the world. Any person that is capable of being an actor, and that is capable of being the first appropriator and user of a resource, has a better claim than anyone else. And that basic argument does not depend upon their quantity of intelligence. It just depends upon them being an actor. So sort of a binary thing. Once you’re in the group, you have full rights.

Steve Patterson: I mean, I also, for you, I think that’s the assistance, but why would that be superior in any way to me just saying, you know, seizing everything, because you said, except I say.

Stephan Kinsella: But because it’s primary. So in other words, it comes first, and it’s the presupposition that we’re basing everything on. So if you come up with a second criterion, it’s got to undermine and undercut the first one, right?

So in other words, it’s just a fancy way of saying, I agree that for purposes of, for there to be argumentation, there has to be human life. For there to be human life, humans have to employ scarce means in the world. For them to employ scarce means in the world, someone has to be the first user of a resource, right? For someone to be the first user of a resource, he has to be free to take it and start using it. For there to be ownership, the latecomer principle applies, which means that, you know, the person who first used a resource has a better claim to it than anyone else.

So we agree to all this, and then you say, yeah, but we’re still going to take it from the guy anyway, because he’s stupider. I mean, that’s usually what you’re saying. So it’s just a contradiction of all the essential presuppositions that you’ve come up with. In other words, if you introduce a distinction.

I mean, how about a more realistic example? Blacks, or women, at certain times in history, and in certain cultures even still today, are considered to be inferior to men, or to white men, right? And therefore the standard arguments that we came up with only apply to, like, white men, or something like that, right? Women don’t have the right to engage in contract. They don’t have the right to buy property, et cetera. I mean, this is an actual argument used. And the arguments that the women are the frailer sex, blacks have a lower IQ, they’re not as evolved, whatever the arguments are, right?

But I think with these kind of grand questions, we have to really sit back and say, all us, gets really enlightened, liberal-thinking, realistic people, is this a serious argument? Are we really saying they’re not human actors? Are you really saying that it’s impossible to imagine a black man alone on an island surviving and acting as a human, employing scarce means, or a woman? Yeah, it’s just an arbitrary distinction that is not grounded in the nature of things, that everyone that’s a potential arguer could in principle agree to as being fair.

Steve Patterson: Well, I find it, I mean, I find it persuasive, and I find the conclusions persuasive. But the thing that, that’s the sticking point for me, is the notion of the inescapability of it. So I agree, I ain’t going to persuade a lot of people to say, oh, we’re going to give these exceptions for women and they don’t qualify. Totally not. Well, swayed anybody.

Kinsella’s Defense

1:11:19

Stephan Kinsella: Let me ask you, let me give you one thing I haven’t gotten to yet, and see what you think about this. Okay, especially when I deal with libertarians who are skeptics of argumentation ethics. Not skeptics, really. I understand people being skeptical, because this entire area is confused and difficult. But people that are outright hostile to it drive me nuts, right? So because here we have, you know, we don’t have a case where I’m talking to my neighbor who’s like, you know, a normie, and I’m trying to say, look, let’s go back to principle. You agree with me that you should be fair to people and you shouldn’t hurt people, right? Now if you just apply economic logic, you could, some, and then I try to persuade them to be a little bit more consistent, right? Whatever.

I’m already talking to a fellow libertarian, you, and sometimes a fellow anarchist, which I think you probably are, right?

Steve Patterson: Yep.

Stephan Kinsella: And so now, either you yourself have a justification for your normative views, or you don’t. Okay, if you don’t, then what is the big fuss about? So you have these libertarians walking around with no good argument for their views, and they’re upset that someone thinks that they do. I mean, what’s the difference, really? I mean, basically in your view, everyone’s walking around, it’s just like this nihilistic desire to smash people, that, like, I don’t know, I don’t know, you don’t either, so shut up, you know.

Steve Patterson: I’m definitely partial, at least, towards nihilistic ethics, with some exceptions. But what’s interesting, though, is I also see from the opposite point of view that, as annoying as those extreme, like, anti-Hoppeans are, though, it’s also on the other side, that people who take argumentation ethics and say there’s literally no coherent way to argue against these libertarian conclusions, and I don’t, they try to bash that over the head. I don’t find that productive either.

Stephan Kinsella: Wait a minute. Wait, you lost me. So you’re, the Hoppeans lose you, or the anti-Hoppeans?

Steve Patterson: No, no. It’s, I see it from the other side as well, from the Hoppe, I don’t want to say all Hoppeans, but there is definitely a flavor of argument when people take this as something true, not just in rationalist ethics, but in all types of rationalist history. Yeah, yeah, yeah. You say, you know, you can’t defeat me. There’s no coherent argument against it, and if you disagree with any part, it’s because you’re stupid. I think that also, this.

Stephan Kinsella: Yeah, I wouldn’t disagree with you on that, as a tactical or strategic matter. But here’s the thing. Let’s suppose that, let’s suppose you are a libertarian. Okay, that means you do believe, and I don’t think most libertarians are like totally ethical relativists, right? They actually do believe that their libertarianism is superior in some way to competing ethics, right?

Steve Patterson: Right.

Stephan Kinsella: I don’t, they might not be able to adduce reasons for it, good reasons, but they do think that they’re there, right?

Steve Patterson: Right.

Stephan Kinsella: Which means that they effectively do believe that an argument for socialism is wrong for some reason, right?

Steve Patterson: Right.

Stephan Kinsella: They do believe that an argument for socialism is incoherent for some reason. They do believe that already. Almost every libertarian, even non-Hoppeans, implicitly believes that libertarianism is the only justifiable argument. And then, and because it is true that all justification has to be done argumentatively, they believe that libertarianism is the only one that’s argumentatively justifiable. So they must believe, to some degree, that an argument for socialism is argumentatively incoherent. And yet they attack Hoppe for basically saying that. Do you see? So it’s kind of bizarre to me that people who basically agree with what he’s saying, attacking for saying what they believe, right?

Steve Patterson: And I think it, I think it’s about that, the rationalist, like for me at least, because I place such high value on rational reasoning. I think it’s exactly, it’s the most profound way of reasoning. Those initial steps, before you get to, you know, if we agree on ownership, then X, Y, and Z follow, is just getting to that agreement on ownership. Is that something that’s truly inescapable? That’s where I think, you know, there’s needs to be, there’s a lot of room.

Stephan Kinsella: Okay, the most despotism here.

Steve Patterson: Yeah.

Stephan Kinsella: Oh, I totally agree. So, but let me, from your point of view, let’s say you do believe libertarianism is the most coherent, intellectually defensible, justifiable, you know, ethical position. So you have to believe that socialism is not intellectually defensible, right?

Steve Patterson: Yeah.

Stephan Kinsella: So.

Steve Patterson: I would, here’s the way that I would put it, because I’m partial towards the ethical nihilism, with, there’s one big exception, with my caveat, that I think it is the case that if people in society agree to principles of ownership and understand them almost identically as we understand the rules of chess tournaments, then society flourishes. Yes, you get a maximization of not just peace, not just prosperity, but the ability for individuals to love, which that is my, that is my ethical value, where I think that is, that kind of grounds my ethics, is love is the good. And so that system which maximizes the love is the good system.

Stephan Kinsella: Yet I would even myself disagree with what you just said. And let me make one other point. I think that the Hoppean argumentation, I think, is really meant as a way to strategically persuade people. It’s not that kind of argument. As I said, most people, look, society couldn’t exist, in my view, without people mostly being decent and seeing these things practically, intuitively, in other ways.

I was a libertarian before I read Hoppe. It’s just that when I read it, I was like, oh, this is so, it makes so much sense, and it was like intellectually pleasing to me as someone interested in the theory of things. You follow me?

Steve Patterson: Yeah.

Stephan Kinsella: I don’t know if you’ve had a bunch of socialists out there doddering along, and they read Hoppe’s argumentation ethics in 1988 Liberty magazine, they go, oh, now I’m going to be a libertarian. But that’s really more a question of how to persuade people, or tactics, or strategy, or psychology, or something like that. So it’s not that this is supposed to open people’s eyes, but it is supposed to be a way to demonstrate to libertarians why it, like, why it logically is that no one is able to defend a system competing with ours. No one’s able to justify socialism. It’s just contrary to the nature of things.

I mean, I’m not able to justify socialism given the presuppositions of this type of universal ownership principle. Yes, but the thing is, when they engage in argumentation as a peaceful activity, these peace people do, and they come together, they’re trying to be civilized, they’re trying to respect each other, they’re trying to find a way to work with each other in this world of possible conflict. And the people that are trying to do that, now I believe that it’s because of evolution and psychology. I mean, humans, because of the way we evolved, we have a social nature, but there is an advantage to being in society with each other, communities. But that gives rise to the possibility of conflict, and it gives rise to human feelings of empathy.

So I think that, for example, and I think the free market enhances empathy, but empathy, to my mind, is the kind of root source of rights, in the sense that it makes us value other people, not just ourselves. But to the extent you value other people, that’s, these are the type of people that engage in these inquiries in the first place. I mean, even our opponents are basically civilized, so they recognize the Grundnorms, the basic norms that we do. They just go way off track, I think, because there’s so much baggage, and there’s so much economic illiteracy, and there’s so much confusion, you know, about individualism versus the collective goods and things like that, right?

One of the biggest problems is the state is viewed as this kind of background entity, to be this, separate from us, that is necessary and permanent and has to be taken into account, and there are special rules for the state, right? That lets people use the state as a safety valve for all the things they don’t understand. They just shove it into the state. In their personal lives they would never rob their neighbor, right, but they will consent to the state robbing their neighbor.

Steve Patterson: Yeah. I think when you expand on even kind of common-sensical ethical intuitions that people have, do you think it leads to some kind of a, some version of an anarchism, even though people don’t immediately see that’s where it leads? But this has been an awesome conversation. I have enjoyed it. We can do it again any time on another topic, if you like.

Stephan Kinsella: Excellent.

Closing Thoughts

1:21:12

Steve Patterson: All right, that was my conversation with Mr. Norman Stephan Kinsella. I hope you guys enjoyed it. Wherever you fall on this particular argument, I hope that clarified things.

I think many proponents of argumentation ethics are a bit too strong-headed in how certain and complete and absolute and unquestionable the ideas are. And I think many people who criticize argumentation ethics are a bit too quick to do so. I think there’s some middle ground here. I’m definitely not totally on board yet, but I think there is some truth to be discovered when at least thinking about some values that we demonstrate that we presuppose when we’re in the process of argumentation.

So though I’m not a rationalist ethicist yet, I’ve got an open mind, and I’m still ready to be persuaded. Obviously there’s a lot more to say on this issue, but not today. That’s all for me. I hope you guys have a great week.

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TRANSCRIPT FOR Ep. 63 – The Limits of the Non-Aggression Principle | Interview Breakdown:

Introduction 0:04

Hello my friends and welcome to the 63rd episode of Patterson in Pursuit. This week is going to be an interview breakdown of Episode 50, which was my conversation with Stephan Kinsella about the non-aggression principle and argumentation ethics, two fundamental ideas in libertarian political theory.

Now, because that conversation lasted about an hour and a half, I’m not going to go through both of them on this interview breakdown. I’m actually going to break this breakdown into parts. This week is going to be about the non-aggression principle. And if you’ve never heard of the non-aggression principle before, don’t worry. It’s simply the principle that it is not legitimate to initiate the use of force against a non-aggressor. In other words, don’t use force on people that aren’t using force.

The Non-Aggression Principle 0:51

Kind of sounds like the Golden Rule. I think it’s a pretty good idea. That’s what we’re talking about this episode. At a future unspecified date I will break down the part on argumentation ethics. That second part will take a little bit longer, because it was the majority of our conversation and because there’s quite a lot to say on the topic.

The non-aggression principle is a fantastic topic in its own right. I love talking about it, love thinking about it. It comes up all the time when talking about political theory, especially to those who are of the libertarian disposition, which I unabashedly am. So hopefully this conversation will spark some good dialogue amongst those who are listening to the episode.

There’s actually a split in the libertarian community between people who are non-aggression principle absolutists — and I don’t mean that in a pejorative way — who think that there are no exceptions to the non-aggression principle, and libertarian non-aggression principle 99ers. Maybe I would be in that group. And there is a group of people that thinks the non-aggression principle is not so important. But most of the time, if you’re talking to libertarians, they’re going to have favorable things to say about the non-aggression principle, whether or not they treat it as some absolute thing or a pretty good rule of thumb.

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Using the Crude Language of Social Conventions 2:54

All right, so where I want to start this interview breakdown is where the actual interview started. We didn’t jump right into argumentation ethics. First we talked about the non-aggression principle.

If I were to say something like, as a general rule, you know, I don’t support aggression against people that aren’t being violent, but I’ll make some exceptions. So I could say something like, you know, I don’t think you should put your hands on other people when they don’t give you permission to do that. But if somebody’s running out in the street, an adult’s on their smartphone and the bus is coming, and you go, “Hey buddy,” and you grab them, I think in a case like that, it’s such an emergency situation. We don’t have time to have a conversation with someone and find out whether they really want to commit suicide or whether they would consent to being briefly jostled to save their life.

So all you can do in the split second is try to use the crude language that we have, which is social conventions, right? Because this is all a matter of, when we talk about consent, consent is, um, it has to be communicated by a public language. But language need not only be words, right? You could have two people that don’t even speak the same language get along with each other. So there’s always a background assumption of norms, customs, and things like that that inform language.

So I think when you see someone, a regular businessman on their cell phone and about to walk into the face of a bus that’s coming, and he’s obviously distracted, the assumption is that he’s implicitly communicating by his existence in a society like that, right? Without walking around with a sign saying, “Hey, if you see me about to die, don’t rescue me.” So he’s not changing the default presumption of what communication is, right? So basically my point is, most people would assume that the guy would consent to being rescued.

The Absolutism of the Non-Aggression Principle 4:42

Okay. Now I actually agree with this position, though I think it challenges the idea of the absolutism of the non-aggression principle. If already we’re saying, well, there are norms and conventions, that we assume somebody has this set of beliefs, we assume they would have consented. Well, I think that’s true. I think that’s also an argument to say, well, therefore this non-aggression principle is not absolute.

Most people in almost every circumstance would say, “Hey, if I don’t give you permission, don’t put your hands on me.” Yeah, we would all agree to that. And then maybe they have a little asterisk by it, and we’d say, “Except if I am walking out in the middle of the street, you may shove me out, and even if it breaks my arm when you shove me, if you save my life, you know, that’s okay.” It’s true. It’s a social convention, and it’s true that in law I think it would be recognized as such. But I think it also challenges the idea that the non-aggression principle is something without any exceptions.

But even if we say it’s an act of aggression to rescue your friend who wants to commit suicide, because you think he’ll see reason in the light of day, right, or rescuing this businessman about to walk into the face of an Apache helicopter or whatever, even in that case what you could say is, the rescuer is willing to take the risk of some slight legal liability in order to do a good deed for someone else, and so he just hopes for forgiveness. Okay? And you know, that’s one way to approach that issue as well.

The Preservation of Justice 6:06

Now this is an interesting idea. I’ve had several conversations with libertarians who espouse this way of thinking about justice, that a rescuer would take on some small amount of legal liability, that technically the person who is rescued could still sue because there was a rights violation. And this is the question that I have for those individuals.

I grant that it helps with consistency of legal principle. I grant that. However, here’s the question. What benefit is there to keep open the possibility of a lawsuit when somebody has been forcibly rescued from the middle of the street? Why would such a legal system be preferable over one which says, “Hey, the non-aggression principle is great, but there are a couple of limited exceptions”? Why would we want to keep open legal liability for a rescuer just for the sake of what?

Now Stephan Kinsella didn’t give this response. I actually don’t know if I asked that directly. But another prominent libertarian who I’ve spoken with privately about this has said it’s about justice, that the reason we keep open that legal liability is for the preservation of justice.

Now I don’t have a belief in this kind of existence of cosmic justice, that even if it’s a net negative in society, if in emergency circumstances you can be sued by somebody that you rescued just because there’s a rights violation — let’s say they’re poor and they want to extort you for as much money as they can — even if that sounds shitty and it might make you less likely to rescue somebody in a dire circumstance, for the sake of justice we should be in that legal system.

Now again, I don’t know if Stephan Kinsella has that belief, but this is a position that I frequently encounter. And I want to know, what is the benefit of preserving that type of legal consistency at all costs? We must be consistent even when it might result in an outcome that we think is, quite frankly, unjust.

Now I do want to add here, I’m not somebody with a position that thinks there are no absolutes, there are no principles without exception. I’m just saying I don’t think the fundamental principle is the non-aggression principle, precisely because just around the edges, in 1 percent of cases or less, you do have these circumstances where it seems very clear to me a just legal system is one that contains exceptions for putting your hands on somebody else.

A Just Legal System and Assumed Consent 8:33

Would you say that if we’re going to be really strict in our analysis of rights, that in the case of pulling the guy out of the street so he doesn’t get hit by the bus, technically speaking that would be a rights violation, but it wouldn’t be something that’s immoral, and it would be under the assumption that the person would have permitted it? But if we’re going to be technical, it still is a rights violation?

No. If the assumption is he would have permitted it, and if that assumption is correct, then it’s not a rights violation, because it’s consented to.

So it’s not a rights violation based on the assumption of consent? Because that seems like a dubious — if I could say, “Oh, I thought you consented to me taking your television,” you know.

Well, I think opinions among libertarians would vary on that. So I just want to be clear about that position. Again, he’s saying it’s not a rights violation if there’s the assumption that the individual would have consented to it, and that that assumption is correct.

Now again, I think both of those claims are debatable. On the one hand, that you can just assume that an individual consents to putting your hands on them. And second, that it should be up to the person who was rescued from the street whether or not it’s going to be a rights violation.

I prefer a third option, which is to say, even in the case where somebody is trying to commit suicide and trying to be in the middle of the street, but you see them at the split second and you save them by shoving them, it is not a rights violation. I think to rest this question in the hands of the person who’s assuming the other person would consent, or waiting to hear whether or not the rescuee wanted to be saved, I don’t like either of those options. I want a third one.

And even if you agree with Stephan Kinsella here, it makes the non-aggression principle a lot less simple and straightforward. So it’s no longer just “don’t initiate force against a non-aggressor.” It’s also, what we mean by aggressor depends on you trying to guess somebody else’s consenting about you using some kind of physical force on them in certain circumstances. But sometimes it could be wrong.

You could say there’s maybe three distinct views there. I mean, I have my own view. I lean a certain way. You could say that, as the rescuer, I’m assuming the guy will retroactively say he consented and everything will be fine. There’s like a 99.9 percent chance, so I’m taking a very small risk that I am violating — like, in other words, it’s epistemologically or epistemically unknowable whether I’m violating his rights. I can’t know until after the fact, I see, but I’m going to take the chance. That’s one way of looking at it. And I think in some cases that is what is happening.

I think in the case you mentioned, I personally would just say, look, the guy by his own action is putting his fellow neighbors into a position where they have no choice but to make a split-second decision, and if anyone, it’s his fault for putting them in that area of uncertainty. Okay? So then we have to say, well, then what was communicated, if anything was communicated? I would say that there is actual consent. And even if the guy later says, “Look, I don’t want to ever be rescued, I’m a 1 percent minority outlier,” or a one-out-of-a-million outlier, I think we say, well, you’re just wrong. You did consent. If you don’t want to consent, you need to have some kind of special clothing, that do-not-resuscitate type idea.

Is It a Rule of Thumb? 12:02

Now again, this might be correct in a sense, that indeed by walking in front of a bus you have put your fellow humans in an awkward legal and moral circumstance. However, I think again it implies that the non-aggression principle is a rule of thumb and it’s not some absolute thing. Because now he’s saying, well, just by kind of virtue of existing, you have consented that other people can put their hands on you if they’re trying to save you, even though you’ve never done that explicitly. And if you disagree with that principle, you now have the obligation to wear some kind of a shirt, or notarize everybody, to say, “Hey look, I’m one of those weird people that, you know, I don’t want to be resuscitated. I don’t want to be saved from the buses. If a piano is dropping, you know, don’t shove me out of the way.”

But where does that come from? That sounds like a positive legal obligation to me. And now we have to seek out justification for why exactly it’s the case that indeed you have a responsibility to signal to other people how much of a social contract you’re agreeing to and how much you’re disagreeing to.

And another issue with this is, once you start going down the line — I mean, I would say we’re talking about exceptions here — once you start going down this road, there’s all kinds of continuums and gray edge cases that are going to keep cropping up. Which isn’t a problem for a theory which treats the non-aggression principle as a fantastic rule of thumb, but I think it is a problem if you want to treat it as something that’s absolute.

Private Property and Competing Legal Systems 13:35

Now he did add something I thought which is a really good point here. And by the way, this all also — we never specify whether the property is public or private when we talk about these things. Sort of like we imagine this sort of ghostly realm of a vaguely specified walking ground that’s, you know, there’s mist everywhere and no one owns it, you’re just happy to bump into. But in reality you’re always, especially in the libertarian society, you’re always in a private property setting. So either you’re on his property, or he’s on your property, or you’re on the shopping mall’s property, and there are already some rules laid down for this kind of behavior, if only implicit rules. So really the resort might be to the rules of the property owner.

Now this idea I think has a lot of legs, because it’s true, in conversations with people when we’re talking about legal theory, it’s often not specified whose property that we’re on. And I think private property ownership solves a whole bunch of problems in political theory in general. There’s a whole host of issues that are caused by the existence of public property in the first place, that if we just privatize property, I think lots of things get resolved.

But there’s still a question of what a geographic location’s set of legal norms are. So it may be that on my property I have some slightly different rules, on your property you have some slightly different rules. But it’s most likely that the societies that would emerge in a kind of libertarian system would agree on some basics. I think we’re getting at the basics.

So say we’re talking about two store owners’ properties in our libertarian paradise. Store A, and the property of store A, is owned by somebody that’s a non-aggression principle absolutist, and he’s got all the legal rules that we’re talking about in this interview. Property B is somebody like me, a non-aggression principle enthusiast with exceptions. The question is, which land do you think has a better system of rules? Is it that which says, “Hey, you now have a true legal obligation for saving somebody from the bus that was going to hit them. Even if it’s a small chance that somebody will sue you over it, they still could”? Or is it a superior legal system to say, “No, you were trying to save somebody in an emergency circumstance. We have a different set of rules that apply in emergencies”?

In my evaluation, I side with property owner B. Now don’t get me wrong. I’m not saying that I think it should be illegal for a property owner to have his specific set of rules on his land. So I’m not saying that the non-aggression absolutists shouldn’t be allowed to set up such a legal system, right? This would be a consistent libertarian position, is to say, “Hey, you can set up whatever rules you like on your property. I’ll set up whatever rules I like on my property. Businesses will set up whatever rules they like on their property.” And we’re going to have some kind of norms that will emerge out of that system.

We can still have, I think, smooth functioning through different legal systems, just like we do when people engage in international trade. Trading across borders means you’re going to be using different legal rules, and yet the system works out because people have a mutual interest to agree on a particular set of rules.

This is kind of a side point, but it’s really interesting, the idea of competing legal systems. I think just like we should have competition in the production of shoes, I do think we should have competition in the production of law. And if in some world people are able to make their own legal libertarian systems, or authoritarian systems, or whatever it is, I think I would be most attracted to that which says non-aggression principle 99 percent of the time, with some exceptions.

Preemptive Force 17:03

So if we were to take that line of reasoning, though, couldn’t you see in a line of argument that said, you know, “Oh, I know I groped you inappropriately because I assumed that you were consenting based on, you know, your behavior,” and something like that? Doesn’t that kind of open up the door to all kinds of claims of assuming consent?

It does. But I think that’s why the law is the art of actually making concrete decisions about concrete cases, right, by applying rules to them. And you have to take into account the dangers of having just a rule that could lead to a slippery slope.

So, you know, for example, in the common law, and I think most libertarians would agree, that you don’t have to wait for someone to physically attack you before you respond. If someone is in a context where they’ve indicated they want to shoot you, and they raise their weapon, and it looks like they’re about to pull the trigger, and they have every intention of doing so as far as you can tell, then you don’t have to wait for the bullet to start heading your way. You can raise your gun and shoot them first. That’s preemptive, right? Preemptive force.

But the common law has drawn a very strict set of criteria around when you can exercise it. It has to be an immediate, direct force, something that the reasonable everyday man would interpret that way, et cetera, et cetera, right? Like if the guy’s a raving lunatic, or he’s got a red tip on a plastic pistol where you should have known, then you wouldn’t be. So these do require judgment of the jury, or the community, or the judge. And over time these standards do develop, and people start adjusting their behavior to be guided by them.

Blurry Cases and Who Counts as an Aggressor 18:54

So once again, I agree in practice that we have systems in common law that are to deal with these kind of edge cases. But again, it seems like that challenges the notion of the absolutism of the non-aggression principle. What do we say? Well, you can have a preemptive strike. Somebody’s raising their gun at you. You’re justified in shooting them before they shoot you. But what if the gun has a plastic tip on it? Well, then now you’re no longer justified in doing that. But what if somebody is colorblind? They didn’t know it was a plastic tip. Well, now are you justified? Well, what if somebody did know it was an orange-tip gun, but they just read a news article of a malicious criminal who’s shooting people with an orange-tip gun. He thought, “Oh man, I thought that was the guy,” so he shot him instead.

Now if you think there’s some clear-cut answer here, I think you’re going to be disappointed. There’s all kinds of crazy blurry cases that we can come up with, to say, “Oh, this person’s clearly an aggressor, this person’s clearly not an aggressor.” I don’t think it works out.

Now then again, you could say something like this. The non-aggression principle is clear. It’s absolute. Don’t initiate force against a non-aggressor. But where all the ambiguity comes into play is not in that principle. It’s in interpreting what is an aggressor, what is force, what is a non-aggressor. Does this person qualify as an aggressor or a non-aggressor? And that’s where all the blurriness is.

One way or another, I think we have to give up the notion that the non-aggression principle is just this simple thing that’s clear-cut and absolute, because you’ve got to have discussions in crazy circumstances where somebody forcibly shoves somebody else because they think a bus is going to hit them, but they didn’t know that the bus was actually going to stop at the red light and not hit them. Do they qualify as an aggressor or not?

If the criteria for determining who an aggressor is is the application of force against somebody that has not consented, well, that fails. You have exceptions to that rule. Unless of course you want to say, well, you see, it’s not actually physical force when you shove somebody out of the way under these particular circumstances. Now we’re saying that doesn’t qualify as force. That’s some other just transmission of physical energy. But it just kind of keeps kicking the can down the road.

I think perfect, absolute, black-and-white rules in law, I think, is pretty much impossible to find.

Absolute Black-and-White Rules 21:18

So in those circumstances, it doesn’t seem like, when it’s clear-cut, it seems like the rule is something that emerges, or it’s something, you know, we’re talking about a reasonable man.

I think that’s correct, but it lacks the kind of argumentative power of saying, “This is the black-and-white rule.” It does.

So if that’s true in those circumstances, why couldn’t somebody just say, well, that’s true of all law? All law, all property rights and rules, are just kind of communally agreed to?

Well, that’s a whole different issue, getting into the social contract and those kinds of issues. And I would do two things here.

Number one, I would say, well, Randy Barnett, in his book The Structure of Liberty, he talks about this. He’s an anarchist libertarian scholar. And what he tries to do is say that he distinguishes between abstract rules and legal precepts. Now abstract rules are these things we would come up with from our armchair, okay, or at least we would sort of find them deductively after seeing inductively many cases over the centuries, and we sort of, you know, get rid of the inconsistencies and formalize and codify it. But when you have to apply them to particular cases, that’s more of a concrete case, and you have to have judges and all these people taking the facts into account.

But the point is, compare this to any other system. I mean, any system, whether it’s socialist or welfare statist or democratic, any type of political legal system is going to have to deal with borderline cases, continuum issues, right? And just because those exist in life, and just because libertarianism doesn’t have a deductive answer you can always answer from your armchair, doesn’t mean it’s an inferior theory, because every theory has these issues.

You could have a dictator, a Führer, just decide everything. It would be totally black and white. Just come to him and he’ll give the answer. A wins, B wins, C wins, D wins. That’s it. I mean, you would know who the owner is and who the winner is. It would be bright-line, we would call it. But it wouldn’t be just, or wouldn’t you have every reason to think it’s just?

No Criticism of Libertarian Legal Systems 23:22

I felt like that was a bit of a dodge, because my point is to say, hey, if you’re saying we’ve got these kind of communally agreed-to rules that emerge out of common law, that sounds like we’re saying, okay, the non-aggression principle isn’t 100 percent absolute. We have other principles that we use to judge what should be just and unjust, legal or illegal. And his response was to say, okay, yeah, but that’s no criticism of libertarian legal systems, because all legal systems are going to have this problem. The socialist legal system doesn’t solve these problems.

And I agree with him. Socialism doesn’t solve these problems. And I agree that, yeah, all legal systems will have these edge cases. But my point is directed at this idea of founding the legal system on the inviolable principle of non-aggression. My point has nothing to do with libertarian systems in general, or how they compare to socialism.

Now that’s where our conversation about the non-aggression principle ended. I’ll just say a couple more things on this subject.

A More Fundamental Principle 24:21

I said earlier that I’m not claiming there are no absolute principles here. I’m just saying that I don’t think the NAP is the absolute principle. So you might ask, well, what could a more fundamental principle be that might lie underneath the non-aggression principle?

Well, I’ll give you my answer, but you’re not going to like it. This is where I invoke my own personal ethical beliefs. I think that the absolute rule that has no exception is that you are always correct and justified when acting out of love.

Now think about how that principle might lie underneath legal theory. So when we’re talking about pushing somebody out of the way because they’re standing in front of a bus, that physical force would be justified because you’d be acting out of love to save somebody from a spontaneous death. The same goes with all so-called lifeboat circumstances or emergency circumstances.

It just so happens that the principle of love and the principle of non-aggression line up for 98 percent of circumstances. In almost all circumstances, when you act out of love, you’re not going to be forcibly aggressing against somebody. You’re not going to be putting your hands on them. You’re not going to be using physical force or threats of physical force on them.

Now to that absolute principle I can find no exceptions. I think that is the principle that kind of gives rise to all the other principles. Now I said you’re not going to like it. Maybe you do. Maybe if you have some religious beliefs you think that’s nice.

Skepticism, Intention, and Love 25:48

But I know a lot of people who have a very skeptical mindset — I share a very skeptical mindset — who might say, “That sounds like a bunch of fluff, because after all, how do you determine when somebody’s acting out of love and when they’re not?” It’s a really sticky question. I don’t have an answer for it, but I’m just talking about justification for individual behavior. If it can be proved that somebody was genuinely acting out of love, I think that should have some legal say in my ideal legal system.

Now let me give you one more example just to illustrate why this might have some meat to it. Let’s say there’s somebody who has a physical and mental handicap, and they shake their arms. They can’t control shaking their arms. It just so happens that they have a knife. Let’s say for some reason they took a knife out of the cupboard, and then their arms start shaking, and totally accidentally, to no fault of their own, they happen to stab somebody nearby. Should they be legally liable for that stabbing?

Well, I would say it’s really difficult. It’s not so straightforward. And I think it depends on the degree of the severity of their mental handicap. So the intention of the person doing the action has some really central importance to law. Why intention is so important in my worldview is because it’s got this connection to love.

One more example. Let’s say that somebody bakes a pie for the five-year-old neighbor’s birthday, and they bake them a wonderful pecan pie because they’re from down south, and it turns out, unbeknownst to anybody, that that kid had a pecan allergy. So he eats the pie and he dies. Well, is the person who bakes the pie guilty of manslaughter because they accidentally killed somebody, because they baked him a pie for the birthday?

Now if the only metric you have for determining legality is the non-aggression principle, I don’t think you’re going to get the ideal answer. I think in that circumstance I want an exception to the rule. I could see a case to say, “Hey look, I baked the pie for the person. Nobody stopped me. It was of the best intention I had. I didn’t know the kid had a pecan allergy. I can’t afford paying restitution to the family.” I think that talking about intention and acting out of love should be important when we’re talking about legal systems.

Contrast this to somebody that knows that the five-year-old has a pecan allergy, still bakes them the pie, and kills the kid. Well, now that person of course would be legally and morally liable.

Now I recognize that this has its own slippery slope, and it’s got its own ambiguities, because again, how do you know the intention of somebody? Now I don’t have clear answers. But I get to say, because I’m not drawing an absolute legal boundary, I get to say, hey, juries and judges should take into account more than the non-aggression principle. They should take into account intention. Love.

Is justice actually served when the baker of a pecan pie accidentally kills a five-year-old that happens to have pecan allergies? Is justice actually served when that person has to pay up? Or is justice served by saying, no, that was a reasonable accident, that you couldn’t have known the outcome, and therefore you get some kind of exception?

This also depends on kind of which person you’re talking about justice being served, right? If it’s justice to the family, justice to the individual that baked the pie. I can just speak from my own perspective. I want to be in a legal system that says, hey, when we open the book for gray areas and weird circumstances, things aren’t black and white. We’re going to take everything on a case-by-case basis.

Closing 29:27

But if you think I’m totally full of it, and you like what Stephan Kinsella had to say, you didn’t like what he had to say, whatever your perspective, make sure to go to YouTube if you’re not already there and leave a comment. Let’s have a conversation about it. It’s a really interesting topic. And if you enjoyed listening to it, go over to iTunes, leave a rating and a review for Patterson in Pursuit. I’d really appreciate it. It helps the show, and it helps these ideas get disseminated further.

All right, that’s all for me this week. Make sure to tune in for the next couple weeks, because I’ve got some fantastic interviews lined up. Have a good one.

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1. See: On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession; On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library. [↩]