KOL268 | Bob Murphy Show: Law Without the State, and the Illegitimacy of IP

the bob murphy show episode

39 there’s a title with coming what you going to do get ready for another

episode of the bob murphy show the podcast promoting free markets free minds and grateful souls it’s your

source for commentary and interviews conducted by a christian and economist

now here is your host bob

murphy hey everybody welcome to another episode of the bob murphy show i really enjoyed the following interview the one

you’re just about to listen to with stefan canella uh stefan and i have known each other for years we know each

other from mises institute events and just online arguing about stuff when i

with jean callahan published a critique of hans hoppa’s argumentation ethics

stefan was one of the bulldogs to push back believe it or not we didn’t

actually get into that topic on this episode and that i went into it thinking

of course we’re going to talk about that because finally because it’s a kind of thing where in print i think we just kept talking past each other and so i

was really looking forward to hashing out our dispute on that and we just ran out of time that we were you know we’re

talking about private law stuff like that it took us more than 10 minutes to settle the issue of how could um a legal

system exist without the coercion of the state involved so anyway it’s a great interview uh i i think you’ll learn a

lot stefan’s a very smart guy and uh we cover a lot of territory like i say private law in particular and of course

his pathbreaking work on intellectual property and i’ll have to have him back on in the future to talk about our

dispute over argumentation ethics as far as his official bio here i’m getting

this from his website stefan canella is a practicing patent attorney a libertarian writer and speaker director

of the center for the study of innovative freedom and founding and executive editor of libertarian papers

so without further ado here is my interview with stefan canella well welcome stefan to the bob murphy show

thanks bob glad to be uh here now i probably the first order of business is to clarify that your name is not steven

canella even though many people write it as such i answer to anything um i go by norman sometimes my first name uh

there’s actually two there are two literally steven canelas in one’s in ireland and one’s in england and they

spell it with the e i’m with an a like stephanie and we each get each other’s emails from time to time over the last

15 years and we will helpfully forward them on to each other usually usually

it’s them forwarding something to me and they are like why am i getting this insane libertarian crap yeah they’re

like “we’re not radical libertarians i don’t understand why people keep accusing us of being nut jobs.” yeah

there’s well once once an economic journalist and actually i did a i did a podcast recently for some libertar uh

some bitcoin something podcast and we had set it up by email and i think the host someone else vj boyetti had

recommended i do it and the host must have googled me but he found the guy from ireland and when we started talking

he says “oh why don’t you have an irish accent?” i said “because i’m” and i said “oh do you think you’re about to talk to

the irish economist journalist?” he says “yeah.” i said “that’s not me if you want me to get him for you i can.” he

says “no we have five minutes to start the show let’s go with it.” so that’s good that’s the one i i debated that guy

noah uh smith the uh the reuters guy or the you know what i mean i know yeah i

know what you mean mhm yeah the on it was on austrian economics versus keynesianism or something like that but

it was kind of funny that the host thought he was about to interview an irish guy but yeah it’s stefan well and

actually you’re i mean i don’t know the other guy but i’m guessing you would have done a better job defending austrian economics than that other guy

yes yeah i don’t think he knows very much about it he’s he’s more of a mainstream economic journalist and the

other guy is an antitrust lawyer so uh yeah they had the right guy it’s just the host had researched the wrong

biography i think right you were the right guy just yeah he got missed i think so yeah that yeah there’s um there’s a a poor robert murphy who’s an

econom i think a macroeconomist who’s a keynesian and i just feel horrible for that guy because you can imagine like

all the people like who probably assume that you know when they see something like hey aren’t you the guy that challenged paul krugman he’s like no i

promise you that’s not me well and not to jump the gun but things like this is sort of an one example i give of why

trademark is not really necessary trademark law because people have the same names and yet they manage to figure

it out you know let’s say oh you’re the steven conell fellow from ireland or you know you’re the rob bob murphy who does

this or you’re the one who went to colombia or new york you know so people find ways of distinguishing uh when they

need to yeah that’s a good point okay before we get into the good stuff the juicy stuff first we need to know the

origin and so longtime listeners know that i do this when i have a guest who’s

somebody well known within libertarian and austrian circles we stop and say “how did you get here?” so with whatever

detail you want to get into stefan why don’t you tell us uh how did you come to be the legal mind of the libertarian

movement if you will yeah and i if anyone’s interested i i have a little chapter in walter block’s book uh on

libertarian biographies or something um and mine’s called how i became a libertarian it’s on my website but um

i’m uh 53 and i’m from louisiana originally and i’m a lawyer in houston now and i’ve been interested in you know

libertarian uh thought ever since like high school when i read iron rand and uh

that deepened in college and then in law school and i basically became an anarchist rothbartian austrian type uh

by the beginning of law school and started publishing some articles right when i started practicing law so that’s

kind of my interest in it and i’ve been heavily involved with the mises institute over the years and so uh been

heavily influenced by the thought of einrand initially but really in terms of systematic thinking i’d say it’d be uh

mises and rothbart and hapa now did you have like any professors along the way

or other students or was it just completely on your own just your own reading totally on my own at the time i

mean um uh a librarian told me to read the fountain head because you know i liked uh philosophy and uh now at the

time it was a wasteland right no i don’t remember having hardly any libertarian no libertarian professors ever i was an

electrical engineer anyway so luckily the teachers weren’t political anyway uh

and in law school they were just kind of practical nuts andbolts teachers mostly with a liberal or moderate conservative

slant but no no libertarianism whatsoever i had one professor that i became friends with who had a copy of

hayek’s law legislation and liberty on his shelf but he was a new york uh a new york lefty uh so no i i i uh things are

different now of course there was a libertarian party but at the time i was hostile to the libertarian

libertarianism and the party because einran had such a violent hatred for libertarians i kind of assumed she was

right it took me a few years to realize wait a second these guys sound just like einran’s political you know theory and

so i remember in 1988 i was just starting law school at lsu and uh i

think ron paul came through campus on the um on the lp uh campaign for

president and i went to see it cuz i was curious and uh i remember i asked him a question about abortion cuz he was kind

of coy about it so i thought i would nail him right and uh so i detected something there right i i was strongly

proabortion at the time because i was a randian right and ron paul and most

libertarians probably are too pro-abortion rights but ron paul was not you know not a typical libertarian so um

i remember i actually talked to ron paul in 88 and just walked away a little puzzled yeah i remember i was a student

an undergrad at hillsdale college when harry brown came through and he was the lp candidate and so of course hillsdale

was very uh you know evangelical is not the right word but there was a strong christian presence on campus even though

the school officially you know was was not was non sectarian and so somebody was was trying to corner him too and and

yeah i i don’t know what harry brown’s ultimate views were in terms of the morality of it but certainly he didn’t think the federal government should be

regulating abortion and and some student tried to tried to corner him and the way harry brown dealt with it was he said

something like if the federal government you know declared outlaws abortions pretty soon men will be getting

abortions and then you know i got a chuckle out of everybody and then he just moved on to the next so i thought that was a pretty good way of of

handling it like you know so anyway um i’m curious did you get more out of

ran’s fiction or non-fiction uh probably the non-fiction um in terms of

libertarian stuff the fiction the more i thought about it the more i’ve rejected the fiction um the fountain head was

what really got me going probably because of its individualism um i was sort of i think i was adopted and so i

kind of never had this uh your your claim to worth is based upon your family lineage and all that

you know i was kind of a pull yourself up from your own bootstraps self-made kind of mentality guy and i was into

philosophy but i came from a little place in louisiana as i never had anyone to talk to so that stuff kind of lit me

on fire and kind of but in retrospect the fountain head is like it’s a novel with quasi rape in it number one and

intellectual property terrorism i mean the whole plot is about this guy who destroys someone else’s property in a

fit of rage that they used his ideas without his permission so the whole thing is completely anathema to what i

now believe so i’m wondering what about the fountain head even attracted me now atlas shrugged is much better i believe

from a libertarian point of view except it has a little bit of ip stuff in it with the rear metal stuff and the patent

stuff which is confused but atlas shrugged is way more libertarian i think than the fountain head um but no i think

it was her her nonfiction works for me i mean this was 19 probably from 84 to

about 89 i would go to the lsu library and i would read the old iron rand newsletters and i remember barbara

brandon’s biography came out at the time so i was devouring everything listening to tape lectures by you know david kelly

and bob bidnado and uh all these guys that you could get from the les farbooks

catalog and things like that at the time because that’s all there was you know it wasn’t there was no internet and i would actually i corresponded by mail with

david kelly a little bit um and uh a few other people like that tibor mccann my

friend jack chris in mississippi so it was a wasteland back then i mean david kelly wrote me back and he said i was in

law school i remember david kelly says “well your questions are good.” and he gave me some nice answers and he said “there’s a guy in jackson mississippi.”

now i was in baton rouge so like he’s telling me there’s a guy in 4 hours away from you who is similar age and has

similar interest to you you might want to contact him i mean that’s how bad it was so i made friends with with a guy in another state in another city because i

finally found someone in the country you know who had a kindred interest in ideas but it was kind of like that but uh yeah

yeah well this yeah the the anecdote i tell just to try to get our younger listeners to to realize how bad it was

um i had read human action as a senior in high school not saying i understood it all but you know i i did read it

cover to cover and i knew oh i got to be an austrian economist that’s what i’m going to do for my life and i went to

hillsdale college and there i think i was talking to gary wolf from when he referred to it as to the man as mees and

i was like oh cuz i had been calling them lwig vonmises the up till then so

you know well i’m i’m i’m always surprised now i’ll still come across you’ll hear someone in an interview or something someone who’s like a fellow

traveler like a i don’t know like a ben shapiro type or someone and they’ll mispronounce some of the they’ll mispronounce in ran still or mises and

i’m always surprised i’m like haven’t you guys figured it out by now like you surely couldn’t have only heard about

this from in in in books i mean you must have heard someone say the name properly but um and i will say one other thing i

i went into engineering because i like technology but i always i think honestly my my strongest abilities in was

probably like the liberal arts uh economics uh history english literature

that kind of thing i don’t regret not having done it but in engineering which i did well in and i liked for the

precision i always sort of had this hunger for the normative and the verbal way of talking so that’s why i love law

school when i went to law school finally i was free from the confines of equations and all that you know um my

son is like 15 now he’s a little bit like me and his intellect and i actually think he’s going to do the liberal arts

route and uh i don’t i don’t regret it but i think that’s one reason i’ve i’ve written articles and things like that i

just i’m just i enjoy that more i never actually practiced double e engineering anyway but um anyway so i’m saying i i

didn’t have the luxury in my undergrad of doing a lot of stuff that’s conducive to this anyway it might have been for

the better anyway i i don’t know what you think about this but i you know i don’t think not having taken official

economics or oh i did take you know the basic economics engineers have to take um i remember the phillips curve made no

sense to me and i was just then dabbling in austrian stuff but the the whole idea a that unemployment and inflation are

inverse relationships because i remember i told the teacher i said what if some space aliens murdered all the unemployed

people overnight i mean it wouldn’t be a good thing but do you really think inflation would go up tomorrow and he

says oh no the curve would shift i’m like okay well then you know so i was skeptical of the that mainstream

approach even in even in college i have to ask i think roger garrison i know he was engineering was he do you know was

roger garrison electrical engineering as an undergrad i have no idea i i’m pretty sure he was because i know he he said

something along i’m paraphrasing here but i’m i think i’m getting the spirit of this right he said something like he was helped greatly in going into capital

and interest theory and economics because with his engineering background they had to make sure the units matched

up and the equations you know like that was something they you know they had to do and and that famously and you know

when it comes to economists talking about interest you know like just even the the standard diagrams they’ll use

the axes don’t make any sense like in terms of the units you say what what is that unit and it’s like it’s got a dimension off or something well and i

could see that being the type of person who’s an engineer or or who could be an engineer right being smart or good at

math would aid you in the modern study of economics anyway right didn’t you didn’t you go to nyu and it’s very

mathematical or something like that and it’s difficult for some yeah for some yes i did but i think even beyond so

yeah obviously you know if you have a if you’re a quantitative let’s call it background you’re certainly going to need that to get a an advanced degree at

a at a decent university nowadays at least in the us in economics but you could have been a math major and if you

didn’t have something like i guess either physics or engineering you wouldn’t have had to like check your units in the equations like that might

never never have come up and so that that’s what garrison was was getting at that it was his engineering per se not

just a you know like somebody could be a statistics major you know and never have had that issue and so the things he was

talking about in capital where you know really smart economists were making simplistic mistakes in terms of their i

mean it was it was sloppy and they could come back and they say “oh yeah yeah yeah right it should be you know per per year or something like that.” but but

still it was the way they draw like krugman did this a year ago like his diagram actually the axes as he labeled

them didn’t make any sense oh i see what you mean um well on a this is a slight

tangent on this topic but i i being a patent lawyer i actually ended up using my double e skills i mean it was

essential for what i’ve done because i do laser patents and high high-tech electrical computer type patents so my

double e degree turned out to be more useful even as a lawyer than it is for a lot of engineers who go off into

business or whatever it was just serendipity but i remember i wasn’t one of these people who always wanted to be

a lawyer i just kind of was frustrated with i went to grad school for engineering at first and i didn’t really want to be an engineer and so i kept

going to school partly to ride out the recession at the time and partly to just

see what i wanted to do so i thought about law school and i i walked across the lsu campus to the law center cuz i

thought you had to have a pre-law degree i didn’t know anything about it and i i talked to the chancellor and i said “do

i need a pre-law degree?” he says “no all you need is a bachelor’s degree in something.” he says “but we don’t

recommend it for engineers because they just they don’t do as well in law school.” which i learned since then is

complete bs it’s the opposite of true i think what he was thinking was a lot of

engineers are not as good let’s say as an english or history major at writing

and expressing themselves and even communication and he’s got a point there but if you can communicate well then the

engineering mindset is actually conducive i think it’s called i would think of it as analytical cuz it’s problem solving now it’s more causal

physics science-based but it’s still problem solving analytical and law school is too it’s just more verbal and

uh you know uh legal concept type reasoning and the first year of law school the whole purpose is to break

your mind and to make you think like a lawyer and a lot of like english majors and humanities types have trouble with

that because they’re they’re used to all this open-ended inquiry you know uh there sort of struggle they’re forced to

no you have to have a pro you have to come up with an answer solve this problem

so but i did find that by pure luck again the one law school i chose lsu

just for convenience i think turned out to be one of the best for what i ended up doing in my libertarian career

because it it’s a it’s a civil law state so it’s it’s the only it’s one of the only schools in the country that teaches

the roman law as well as the common law and there’s a lots of legal background that most lawyers discard after they

start practicing and only use what they need for their specialty but i love that stuff right and i i now it’s helped

inform a lot of my ability to analyze um libertarian issues that and austrian

economics right austrian economics rothbartian radicalism and the libertarian views and kind of a

knowledge of how the law works both from the roman law or the european civil law i would say and the american common law

or the english common law uh has been helpful uh a lot very helpful i think to helping figure out uh solutions to some

of these kind of thorny uh problems that we have in libertarianism yeah definitely before we i want to ask you

more about that but just a quick little thing you that you prouded my uh memory on saying how your background in e

helped you with you know laser patents and things similarly with me i mean i thought i thought i was going to be a

theoretical physicist when i was like in seventh and eighth grade i was you know reading stuff about richard fineman and you know that he was my hero and oh my

gosh i totally got to do this i’m going to unify general relativity and quantum mechanics that’s what i was going to and

and then of course i got uh fell in love with economics instead but i’ve noticed because i do a lot of work on energy

issues and just goofy little things like like if some free market economist is talking about the obama administration

and its regulations and they don’t know the difference between power and energy for example when they’re talking about

you know just little things like that like what’s a kilowatt hour versus and it’s just like you know so anyway good

good stuff there so can you i understand that like the terms you use there but

for our listeners that might be worthwhile if you elaborate a little on this distinction so i think in libertarianism those who

have read it all on this stuff like oh yeah the common law is our is our big

favorite thing and we need to go back to that but you’re talking about there’s a different type of law so what’s what’s

the difference and how why wouldn’t we just like the common law well okay so there’s a common understanding of what

which most people don’t have that so most people are just kind of unaware they just see they just they’re they know that the governments have laws you

know we have laws they know what some of those laws are and they know that they’re complicated so that’s the kind of normal understanding of law it’s just

not really an understanding at all but then if you go up one level right you ask your kind of moderately interested

and intelligent person they’ll they’ll basically say something like this which i think is false they’ll say something

like well the common law which came from england right is more case-based and the

european law is uh more legislation based that’s sort of a first approximation of the difference in

reality here’s what happened to and to simplify first you start with the roman law right which is a law developed in

rome during the well i don’t know during the entire thousand years of rome but for several hundred years during the

roman republic and the roman empire um and that was codified in justinian’s

institutes now that law developed like a case law system like a common law system

actually because it developed in part by people having a dispute and they would

go to these jurist consults or these judges and they would come up with a solution and over time those solutions

became the body of roman legal principles okay some of those decisions were hypothetical decisions though like

these legal experts legal philosophers would just sit down in a room and say now what if this happened and they would

come come up with a result so it was it was still case based but it was like hypothetical case-based but in any case

that resulted in a body of law called the roman law right which you can think of as a common law type system or a case

law system they didn’t call it common law but it’s it’s a case law system later on during the english uh era the

british era um the english common law arose where decisions again were made by

judges hearing cases between actual dis parties and they would come up with a solution and those solutions became

precedent and other judges would build on them and so over the centuries a body of law developed called the english

common law so the english common law and the roman law were similar in that

structural way and they came up with similar solutions they just had different names and different conceptual

breakdowns now in europe what happened was that roman law was sort of lost and

then found again because the just the institutes of justinian were preserved and refound and all this and that

started being built upon by the church’s canon law and by medieval law and the law merchant so you had these european

laws added to the roman law principles but eventually in the 1800s there became

a cotification movement started sort of by napoleon you’ll hear about the code napoleon or the napoleonic code the

french civil code it’s called so basically napoleon had a bunch of legal scholars put together all the

accumulated european law which was the roman law plus the additions over the

centuries which is mostly a common law type system and they codified it into these beautiful codes the french civil

code is just a beautiful thing to read it’s like a summary of the law we have these in america called the restatements

of the law those are privately done but they’re not legislated they’re just restatements of the law anyway so the

difference was in in europe they took this civil code and then the legislature approved it as the law so legislation or

legal um positivism you could call it became the primary source of law so in

in europe they think of law now as emanating from the legislature even though the original

principles were based upon rules that accumulated in a common law or case law

system over the centuries in england the common law was thought of as the

predominant source of law judges are the source of law cases courts and cases are the source of law and only every now and

then does the parliament come up with a statute and that was seen as a deraggation or an intrusion into the

body of law which is seen as mostly coming up from the courts so that’s how most people describe it now in my view

in today’s 21st century after 200 years of growing legislation in america and in

britain which has gradually taken over the the function of the common law and

in england as well there’s little huge theoretical difference anymore uh so

civil codes plus tons of statute statutory law govern in europe and

common law augmented by lots of legislation is the law in say the us so

they’re both a mixture of lots of legislation mixed with common law so that’s sort of a a summary and by the

way so i’ve written a huge article on this in 1995 in the jls on um kind of talking about decentralization and law

hayek wrote a lot about this and a lot of uh a lot of uh economists uh fellow traveler economists to austrians have

written on this uh too well yeah so that i mean where i know i came across it was

you know hayek’s famous compilation law legislation and liberty and just even up

till that point i think i had used the term law and legislation almost interchangeably and then somebody made

the i don’t know if it was hayek or he quoted somebody you know earlier some saying so tell me if this is correct

stephan i’m curious but the idea being it’s a relatively recent thing in human affairs where political authorities had

the hubris to think they could make the law yes yes you know so of course there

were laws you know going way back but you know no no normal king or you know

baron or whatever thought he had the ability or authority to to change what the law was it was no the law is the law

and yeah and i i think that this probably coincided roughly with the emergence of the modern state and the

emergence of democracy uh i think hapa in his book democracy calls legislation

democratic lawmaking i mean before the rise of legal positivism there was more of a natural law type thinking that

judges were trying to discover the source of law and that you know even kings were subject to the law this kind

of idea um but with just with the advent of the us constitution itself we start thinking of of law as being the the

decree of some authority and usually a civil authority the governmental authority you know either speaking for

the people or whatever and we’re so used to thinking of law that way now so the the bottom line for me as a libertarian

not even as an anarchist you can forget i mean anarchy is a whole different issue i mean you can i think the legislature is for example illegitimate

because it’s part of the state because i’m an anarchist but even if you’re not an anarchist you can still believe that

the primary way that law should be so to speak made i’d say developed would be through a case a case law system not

through legislation because legislation is just the decree of a body of people it’s just an edict there’s no reason to

believe that the decree of a bunch of guys on a committee number one would be compatible with justice and number two

compatible with the previous body of law in fact you have statutes that are incompatible with each other all the time there’s just no reason but if you

have a case law system number one the judges can only make a decision when there’s a real dispute between people

they can’t they can’t just sit down and come up with a tax code or the americans with disabilities law it’s always a

dispute between two contestants over a piece of property basically and then the judge is at least trying to do justice

and they’re somewhat bound by what has gone before so the law develops in a more or less consistent fashion and in

pursuit of justice sometimes makes mistakes but i would say that the body of what we call private law developed in

rome and the common law in england is roughly compatible with what we libertarians

uh would say is is just law and here yeah let me just extend that a little bit so and this is the thing i do um one

of my more popular lectures at mises university is is called the market for security i’ll link to it in the show

notes page folks again this is bob murphy show episode 39 and there i just

i i point out that look at in a in a free society you know like according to rothbartian principles let’s say the

property titles and whatnot there’s still going to be disputes and there’s a genuine need for or or desire for some

authoritative figure to come and render an opinion on who’s in the right in this dispute and even it’s even in our

language today like what does the judge do the judge writes an opinion and so the idea is there’s this existing body

of law out there then in the particular facts of the case the judge then applies

the law to that and says in my opinion you know here’s how the law applies to this particular situation and so that

you know that showing that the the judge is not in a sense making law but nonetheless there is a a strange sense

in which over the centuries all of those decisions sort of create what the

precedent is and the analogy i i didn’t invent this analogy somebody else did but like with spoken language you know

the way we speak nowadays as english speakers is different from how shakespeare did right and and and yet

there’s nobody in charge of the english language yet there is a sense in which all the english speakers by their decisions quote define words and yet

like a dictionary just codifies what the definitions really are it’s not that the company webster creates the definitions

if they put the wrong definition they’d go out of business so it’s a weird thing like that yeah and and and by the way

one of the other classic work works on this if anyone’s interested is is bruno leone his work freedom in the law now he

was an italian legal theorist and that’s more the european tradition but he i think he was strongly influenced by the

decentralized kind of arguments like of hayek um so anyway there are tons of

works on this uh in our tradition that are are fascinating and as a libertarian i think it just means we need to be

aware of the difference when we say what the law is it doesn’t mean it’s just now a lot of conservatives of the natural

law tradition they get really hung up on this there was a famous series of debates between hla hart a legal

positivist so-called from england and lawren fuller who’s more of a natural law type and these natural law types

you’ll notice they want to capitalize the word law and they want to say something like an unjust law is no law at all and as a lawyer and as just a

practical person living i just don’t think that’s the proper way to look at it i we do have certain legally enforced

prohibitions like the drug laws or tax laws which we would say as libertarians

are unjust and if you want to quibble and say they’re not really laws okay fine but sometimes you’re going to get

charged with violating this thing and you need to hire a lawyer to defend you you know so i think it’s better to

recognize what the law is and then have an ideal form in our minds of what the

law should be and we hold up the legal positive law to the just law and we

that’s how we determine whether the law is wrong or right um even conservatives

have a problem with this because they’ve even absorbed this positivist idea you know they have they can stop let me just

stop a second you you’re using the term legal positivism can you just define that in case somebody doesn’t know exactly what that means yeah so and just

to be clear there’s you’ll hear of logical positivism right which is more of a of an epistemological or a

methodological approach in the in the social sciences which is uh you know the idea that the only truth it’s like

empiricism it’s the the only the only truths would be those that we can um we

can formulate as a as a as a falsifiable or testable law a rule right and then we

can go test it and if it’s if it’s not testable it’s just uh empty utterances i don’t agree with that i don’t think most

libertarians do there are certain so that’s logical positivism that’s logical so i just want to distinguish it

although i think there are some connections legal positivism is again the idea that that law is whatever the

authority says or posits it is so law flows from the from the government

basically as opposed to the idea that law is out there and we can discover it okay okay the more natural law idea and

i’d say libertarians are more natural lawyers in the sense that even if you don’t believe in natural law or natural

rights thinking you still think that there’s a standard of what the rules ought to be they can be justified by

human reason and you can’t decree something to be wrong that’s right and

you can’t decree something to be right that’s wrong and that’s what so so we don’t think that the ultimate source of law is the state or is the is the

legislature of the state mhm so so legal positivism is this idea we like again

everyone thinks of law as just being whatever and not only that you’ll hear even libertarians sometimes who get

confused by this modern parlance they’ll say something like um oh like the income tax deniers right they’ll say it’s not

illegal to evade income taxes because show me the law now when they say show

me the law they’re saying show me where it’s written down so that very mentality is the legal positives idea like they’re

thinking of law as a set of statute books that the government has passed and then they want to quibble over the words

in the income tax code but the point is they’re thinking of law as whatever the government says the law is or they could

say it wasn’t properly ratified or something well that would yeah yeah and but a libertarian would say “show me

where it’s aggression for me to um for not pay income taxes.” i don’t care what

the government says their law is the just law the moral law the libertarian law is is basically the codification of

the non-aggression principle and property rights based upon that idea now even can i even push it for a further

distinction even if we had you know an ideal free society of the kind you would like to exist and they had a you know

free market and judges rendering opinions and over time it builds up what the the common law is even there

couldn’t we imagine that they would have made mistakes and so the actual decision and so clearly i think you would have to

say just as a practical matter well this is what the law of the land is even though i personally think it’s immoral

yeah and i think that that’s a more difficult thing to answer it’s and people libertarians say well what what should the law be and a lot of time like

i like the randy barnett’s distinction in the structure of liberty where he distinguishes between abstract legal

principles and concrete legal rules and i think what would happen would be well first of all it wouldn’t necessarily be

judges i think it might just be private so-called arbitrators which serve a similar function right and i also think

you’d have a heavily decentralized society so you’d have different regimes different areas and you know you’ve

written on this hapa and others have written on this the the role of insurance companies and contracts so i

think law would heavily tend to merge into custom and tradition as embodied by the practices of the people as embodied

in insurance practices as and which would reflect the real risks and people’s real preferences um and is

embodied in the cultural values of different areas and you could think of like all these different little mini

cities around the world they would all be interlin by like an international law

and those have very abstract principles like pact which is the idea that agreements are to be respected and even

if you say that all the law in a given area is made by contract you still have to have a general theory of contract

uh to to to build that on and to have a theory of contract you have to have a theory of property rights so i think

just a basic say lockian libertarian view of property rights which is

embodied in the common law and the roman law because it has to be because they have to be practical to work just the

basic idea that basically people can use things that they find that are unowned people get to keep what they what they

own without being molested or stolen from like stealing is wrong property rights are good people shouldn’t enslave

or harm each other i mean just the very basic rules of contract should be respected all those things interlock

together and they would be the abstract rules that would serve the basis like the underlying ground what hans kellison the legal

theorist would maybe call would call grunt norms or ground norms or basic norms and then on top of that you would

have more refined rules based upon solutions that the judges and arbitrators have found over time maybe

in a given region maybe internationally then you’d have sort of treaties or contracts between areas you’d have

contractual arrangements and insurance-based incentives and effectively laws in different regions i

mean you could imagine that nuclear weapons are not technically outlawed by a statute like they are now but they’re

outlawed because of the prohibitions because of the risk and because of because you won’t be able to get

insurance for it and your neighbors aren’t going to want to live next to you or allow you into

their restrictive covenant area you know i mean you could see how it would result in prohibitions that some people would

say are not libertarian but they’re libertarian in their uh in the means that we arrived at them or in the

process that got us there yeah i i really like that just to to chime in that yeah that that was what i did in in

my booklet chaos theory was i was saying you know it’s tricky when you’re doing just the armchair reasoning that you

know people who are against gun control and the arguments they use there actually you know if you took it to its

logical conclusion would mean everybody could stockpile hydrogen bombs in their basement hey and until you initiate

aggression on somebody who’s the government to come in and clearly that’s kind of crazy and so yeah in a in a

totally free market private property society if you’re like living in an apartment building just like they could

say you can’t have uh you know you can’t do certain things to the property you can’t they’ll take the toilet out or

whatever with the landlord’s permission oh by the way you can’t have a hydrogen bomb well and it’s a little bit unfair for our critics to demand that we

predict omnisiently what the world would look like when the reason we can’t know is because the government has

monopolized all these fields and totally changed it from the way it would have developed so all we can do is guess uh

when someone says “well tell me exactly what the educational system would look like if we get rid of public schools.”

i’m like “well i don’t know we have some idea but we don’t know exactly.” and

they’ll say “well what about a poor family how would they it’s like well i don’t know may maybe if we made the

political reforms necessary to get rid of the public school system it would be because everyone got more capitalist and

more free market oriented so everyone’s richer anyway and it wouldn’t even be a problem by then.” i mean you can’t just

answer from your armchair all these questions right um unfortunately so all we can do is try to advocate

incrementally moving towards more freedom and so then you let this i don’t like this kind of hayeki in terms this

discovery process work so that we can discover through the decentralized workings of the legal system and the

market what practices actually work for people that and that they also perceive as just

and i know most of my listeners are going to be high-fiving you in the air in here but for those who think that

that’s a copout i mean and this is standard rhetorical ploy but just to say okay well you know imagine the old

soviet union and they bring you in as an adviser and you say you guys are really should free up your agriculture you know

have private farmers grow all the food and deliver it and you you know you won’t have so many famines all the time and and then you know stalin says “okay

well if i do that tell me exactly where all the grocery stores will be.” i don’t know yeah one one analogy i’ve

given is in the intellectual property thing when people say “well if you get rid of copyright how are how are artists

going to make money?” and they say “well let’s let’s take the slavery case we have slavery in the us.” and some

abolitionist says “i want to abolish slavery.” and someone says “but who’s going to pick the cotton?” it’s like

okay that’s an interesting question to ask but is your question supposed to be

an argument for slavery seriously do i have to tell you who’s going to pick the cotton before we abolish slavery so

sometimes you have to have a go for justice right um uh that’s what we’re

looking for and you know to be fair i’ve done my share of armchair theorizing and so have all of us u so i just like to

give the caveat that just because i can’t answer your question perfectly doesn’t mean that we don’t have an idea

of what the right policy ought to be right well this flows in naturally to

something i wanted to bring up i’ll let you you’ll be more eloquent about it but i remember a while ago i read something

where you were taking on the the critic who says “yeah you know libertarianism or anarcho capitalism is good in theory

but we’re never going to see anything remotely like that in my lifetime so let you know i’m going to focus more on reforming the republican party or blah

blah blah.” so what was your response to that kind of mentality well i just think that we need to be clear that there are

different say different types of libertarians or different reasons we’re interested in it you have activist libertarians and you have sort of

theoretical ones you could say and then you know it’s just a different intellectual inquiry if the question is

strategically or or tactically what can we do to achieve liberty or maybe just a

predictive question when are we going to have liberty or when are we going to have more liberty or what’s the i mean those are interesting questions but

they’re different and someone who’s so engaged in activism that their entire focus is on trying to do something in

their lives to achieve more liberty let’s say or even to achieve total liberty um when you say something like

there’s no right to do this they go “what good is it?” it’s sort of like the marxist saying uh you know tell me about

your capitalism someone on an empty stomach can’t hear your arguments you know that kind of just anti-intellectual

almost like they’re resultsoriented and we’re trying to say we’re trying to uh use reason to analyze what the right

result is so my point there was and it was in a paper called um uh what it

means to be an anarchical capitalist uh and i simply said look you

can’t refute when when i say the state is unjust like when i’m when i say i’m an anarchist i mean i think the state is

unjust it’s criminal and then they’ll say well who’s going to build the roads it’s like well yeah but see your question is a practical question that

doesn’t really respond to my assertion so my assertion is that the state is unjust and the reason it’s unjust is it

because it commits aggression and i believe aggression is wrong and i have some reasons for that but that’s my basic argument and so when you tell me

that the state won’t go away all you’re saying is that we’re going to have crime

you know almost every decent person even someone arguing with you about anarchy we will all agree that murder for

example is wrong or rape we all think is wrong and a crime but none of us thinks

that they will they either practice will ever be completely abolished for the entire future of the human race even if

we achieve utopia on occasion there will be someone who decides to break the

rules so the very fact that some kind of crime is going to happen doesn’t mean

that it’s not a crime it doesn’t mean that we don’t condemn it and recognize it as a crime so that was my point and so my point was being an anarchist

simply means number one you’re opposed to aggression and number two you

recognize that the state necessarily commits aggression so if you if you’re

not an anarchist you either have to favor aggression which most people are reluctant to do or you have to say that

the state doesn’t necessarily have to commit aggression like which is robert nosik’s argument right um and what most

people will do is they will they will equivocate they’ll say something like um they’ll say “well no one’s completely

against aggression after all we favor putting criminals in jail.” so then they start using the concept of violent

defensive force or responsive force that’s aggression too which is not what we mean right so they’re they’re they’re

equivocating on the word aggression but if you nail them down and make them be consistent with their terms

they will finally reluctantly admit “yes i’m against aggression too.” now some of them won’t some of them will say “we’re

going to have aggression in the world no matter what.” like i view these guys as sort of like norm utilitarians in a

sense like they’re against aggression but they don’t think it’s possible to get rid of it so they want to minimize aggression so they think in anarchy

you’ll have more aggression than you will with a minimal state or even with a a moderately small state so they think

that the level of aggression that the government commits like from bad laws jailing people that are really innocent

or from mistakes or from taxing people or conscripting people they think that that level of aggression is less than

the aggression that would that would occur on a private free market without a

state i can actually respect that argument i don’t think they can make that argument out but most people don’t

get that sophisticated most people just say “well sometimes you have to break an omelette to break some eggs to make an

omelet.” you know it’s kind of the marxian idea that yeah sometimes some you have to the little people have to suffer for grander causes so my point is

this to be in favor of the state you you do have to either show that the state doesn’t commit aggression or you have to

come out in favor of aggression um so that’s it so it’s not a prediction about when anarchy will be achieved any more

than opposing murder it’s a prediction that we will achieve a murder-free society so that’s the main argument in

that piece which a lot of people have liked yeah and actually as after i asked it and you went into i realized i i did

a steelman argument there i i made the initial person more reasonable than what i meant to because people you’re right

what i have seen people do and what your art article clearly blows up i think is a person who says because we’re not

going to achieve anarchy in my lifetime the study of anarchy you know anarchy itself is is a stupid goal or it’s a

stupid thing it’s not worth you know arguing about which as you point out that’s you know somebody said hey rape

is wrong and somebody else said oh yeah well you know frat guys are going to keep doing that so you know your position is wrong like that wouldn’t

make any sense at all okay well why don’t we get into perhaps your your most famous um contrib contribution here and

that’s the the fact that you are against intellectual property and so just the the background here um i think your

essay on there is it a booklet is that what we call it like or did you conceive of it as an essay or was it it it was it

was just a long article in jls and they they republished it as i call they call it a book but it’s a mon i call it a

monograph maybe so yeah it’s it’s just called against ip right against intellectual property yeah and uh that

was ha haba’s title i gave it at an austrian scholars conference in like 1999 i delivered it as a paper and i

submitted it to the jails and i said hans i don’t know what to call this he goes just call it the against intellectual property because he’s so

german and i mean he called his society the property and freedom society i remember

we were discussing names for it when he came up with this in 2009 we were we were going to call it the ararat society

because it was going to be in turkey because of where his wife had a hotel and it’s close to mount ararat and that

was in contra distinction to the mont pelar society right in switzerland so they were going to call it the mount

ararat society but it had a little bit too much of a biblical old testament

sort of connotation so anyhow it says just called property and freedom society y

yeah i like the y yeah that was good um okay so i i have to just you know acknowledge that that that essay is one

of the single most influential in the sense of like that one thing i went into it with one set of views and then not

only did you sort of challenge with a frontal assault like to my whole foundation in terms of how i’d been

thinking about intellectual property but then you even dealt with you know the obvious objections that would come up and i was just by the end of it i was

like “yeah he’s right holy cow.” so so for a someone who is a uh you know

believes in private property and but but thinks yeah i mean just you know i’m i’m against theft and and people just like

if i want to be able to plant crops you know somebody needs to own that land otherwise you know what’s the incentive and it’s just and blah blah blah by the

same token yeah if i if i create a song i mean that’s my property if somebody can come along and steal it what’s

what’s going on that’s unjust and it it hampers productivity so what’s going on here stephan

well let me and i can put this in context uh it relates to a lot of things uh the way this came about was i i

remember i was in high school maybe whenever i read einran’s uh i think capitalism the unknown ideal which

probably was in high school or early college she’s got this thing on patents and copyrights and you know i think ein rand

was right on so many things in her way especially for the time but her two big mistakes were her foundation of rights

basing it on intellectual property and on being opposed to anarchy and i can forgive her for that one but and this is

true also of gambos gambos’s entire theory of rights is based on a huge insane insanely wrong spectacularly

wrong basically intellectual property theory lender spooner by the way uh has a huge insane essay on intellectual

property he’s even worse than the others he wanted them to last forever in antiquity i’d say the people who were

best on this was benjamin tucker who wendy moy has explored and pointed out um but even even benjamin tucker was

right for kind of the wrong reasons partly like he’s he’s against monopoly mhm right so he al he was also skeptical

of land monopolies so for the same reasons he’s against patent monopolies and copyright monopoly so it’s like not

quite the right argument so what happened was i read this in in you say ear when i was early libertarian and it

something about ran’s argument didn’t it didn’t resonate with me like her other arguments did because patents and

copyrights only last for a finite time like say 70 a life of the author plus 70

years for copyrights say roughly 100 years and about 17 years for patents and

rand she either had to say that they should last forever which would i think be absurd and kill off the human race

that’s what spooner wanted um or she had to say that no they should be limited for a time so she had to come up with an

argument to kind of justify the current system can i can i stop you real fast what remind us what’s the difference

between patent and copyright yeah so intellectual property is a term that we use now to refer to several types of

laws which have to do with creations of the intellect so that would be patent law which covers inventions okay it’s

basically an inventor of a new machine or process that’s practical um like a

gizmo like a mousetrap they have a a monopoly on making that for like 17 years and copyright covers artistic or

creative works like like a novel or a painting or a song um or a movie

nowadays um and then there’s trademark which is uh the right to your reputation in form of a mark like a business’s

trademark you know their name like a logo or not a logo yep logo it could be logo brand name um product name product

line name basically it’s a mark that you use to identify the source of goods okay so i can’t i can’t open up a a hamburger

place called mcdonald’s with golden arches that’s violate a trademark that would violate mcdonald’s trademark now

you could have say mcdonald’s hardware store if it wasn’t confusing gotcha to if it and there’s laws on that too i’m

opposed to all these by the way and then there’s trade secret law which most people it’s all these are arcane and

very subtle and hard to understand if you haven’t practiced in as a lawyer and so it’s it takes a while to even explain

why i would be against trade secret law because most libertarians like what’s wrong with keeping a secret it’s like there’s nothing wrong with keeping a

secret that’s not what trade secret law does trade secret law gives the gives a

company who someone else has discovered their secret the right to go to a court and get an injunction from the court to

tell that person to keep quiet about it even though they’re not an employee of the i mean so it there’s reasons to

oppose it okay it’s kind of like you’re saying oh i’m i’m a libertarian against laws prohibiting heroin use you’re like

“what’s what’s wrong with refraining from using heroin?” yeah yes it’s one of those kind of confusions um and

trademark they’re like “well what’s wrong with me?” um or or people make this mistake they’ll say “well if you

don’t believe in ownership of um of your labor like which i can get into uh

someone else has to own it so you believe in slavery.” it’s like “no it’s you have to understand property theory it’s not a type of thing that can be

owned.” but anyway so i was always uneasy with her argument because she was justifi she came up with this kind of ad

hoc argument for why it makes sense to have copyrights last for a limited time like in your novel and and why it makes

sense for patents to last for a limited time and i’m thinking like that’s not like natural law thinking that’s not like objective there’s no way the

government can get that right there’s no way we can even know there is a right sort of peak in the middle so i was

always uneasy with that and i kind of put it to the side but in law school i started thinking more and then when i started practicing law in 90 92 i

started practicing patent law and so i started thinking more and more about this so i started reading tons of stuff

and just trying to figure it i thought i’m going to i’m going to solve this problem i’m going to explain the real argument for patent and copyright right

but finally i realized oh i keep running into dead ends because it’s unjustified

the whole thing is wrong and and and figuring that out required like sort of a unique set of other understandings

which only basically austrian influenced and somewhat legally savvy somewhat

academic you know and very radical libertarian people could even think of

which is one reason i think that once you put these things this is one of the few areas that’s very difficult and people have gotten very wrong and that

it’s somewhat easy to make a lot of progress persuading people to open their

eyes like the abortion thing is like impossible anarchy is very difficult um but this one i have had lots of people

over the years give me your response and that’s a good thing and i don’t take full credit for this by the way i think

i put it together better than anyone else has partly because i know ip law and i know how to speak the language and

really not mangle the different arguments but i would say if you look at the history of this uh again benjamin

tucker was one of the first to start getting it right then basically uh sam conchin and wendy mroy were really the

first modern libertarians to start seeing this really carefully and really properly especially wendy and then after

that i would say tom palmer made the next um big huge leap and he basically

is the one who i think him with with hapa and mises and some of rothbart’s stuff mostly hoa and mises with their

emphasis on scarcity and human action right uh with tom palmer’s kind of combination of of this stuff um helped

me to start unlocking it and seeing it properly but i think tom palmer’s works in ‘ 89 or something like that he had

two articles were just uh probably the beginning of the modern clarification of this issue c can i stop your just to be

clear are you saying all those people were also against ip or that they had

necessary building blocks and that you yes they were sam conin was against he was against copyright and his thought

would would lead you to thinking that um wendy wendy was against copyright and patent i mean they weren’t quite as

fullthroated as i was and didn’t give quite the exact same arguments but yes they were they were it was more sketchy

and shorter but yeah i’d say really it was sam conan and wendy learned a lot from benjamin tucker back in the late

1800s i guess so if you want to trace the history it’d be benjamin tucker sam conan wendy mroy and then tom palmer and

then and then my stuff sort of built on top of all that and is a probably more

comprehensive and even more uh fullthroated but this to me this was

just a puzzle i had to solve and it was just you know i started going to the libertarian the misa scholars the

austrian scholars conference sorry at auburn in like 1995 right after rothbart died and i would present you know these

little 20-minute papers and they were all like just puzzles i was trying to work out that weren’t addressed in a

rigorous satisfactory way to me and which i had the ability to sort of do because i knew roman law i knew common

law and i knew libertarian theory and i knew some economics and i knew how to

just be logical and try to figure it out and put it together so i wrote on contract theory and i wrote on this law

this decentralized law stuff um i wrote a rights theory which is this stuff that

was inspired by hoppa’s argumentation ethics which you and i have disagreed on um and causality the theory of causation

of the law so several areas of interest to me and ip was just one of them but

not even my most f i don’t even i i never really enjoyed i liked it at first but i’m not i’m not in love with the

practice of ip law i probably should have chosen something else and i don’t love ip theory itself although figuring

it out and explaining it probably thousands of times by now to people has forced me to gradually clarify my

understanding of economics property law contract libertarian i would probably write that paper a little differently

now but i don’t disagree with anything in it i’d probably emphasize the term rivalry or rivalousness instead of

scarcity because scarcity i see now how that misleads people or allows equivocation cuz they’ll take scarcity

to mean lack of abundance m whereas in economics we mean something we we mean something more like the property of a

thing that it can’t be used by more than one person at a time rivalousness right uh i might be a little bit harder on

trademark than i was then i was a little bit more lenient but the two the two worst are copyright and patent and i

think the reason why a lot of libertarians even have been in favor of this and get confused on it is it’s been

touted and heralded as part of the part of the free market system right it’s part of the us constitution

uh it’s part of the west it’s part of capitalism it’s been part of american society since since the industrial revolution and it’s called the property

right it’s called intellectual property right and we all believe that creativity and and innovation is good so it just

seems like it must be part of of the fabric of free market and libertarian

compatible laws that we that we favor but it just doesn’t make any sense in the end you know it’s kind of a mixture

of incentive arguments with government meddling with market failure arguments

with rewarding the creator like a dessert argument like someone who creates something other people benefit

from should be rewarded so all these kind of confusing ideas melt together and people

just accept it of course the truth is it’s there because it benefits certain special interests and it was passed in

part because of corrupt government practices in the past which i can go into and then it was adopted by certain

people who could take advantage of it and they fought to keep it ever since and then they came up with a propaganda campaign to call it intellectual

property instead of government monopoly privilege which is what it was so and then people got used to it and it’s hard

to disentangle so why why don’t we yeah why don’t we start though from scratch so you’re

right obviously the historical development of it and so on just like with the you know the the what do you call it trust busting or whatever when

you go and look and see how the these uh suits to to break up so-called monopolies actually come from the

competitors and things but in terms of just pure theory somebody who’s never read your article they never heard

someone make a a a case like this you know i i know i have a lot of musicians listening and and why why can’t they own

their song the way somebody who builds a tv owns the tv yeah and i’ve to be i i

have to clarify this over and over that even if you don’t agree with me just be aware that i personally am driven by a

love for the mind and the intellect i value creativity i i’m in favor of property rights capitalism free markets

and that’s the reason i oppose patented copyright so it’s not because i’m some lefty who doesn’t like exploitation or

profit or rewarding inventor it’s not that so just trust me i could be wrong but it’s not based upon a socialist or a

lefty motivation um so just a thumbnail sketch you know you basically have humans humans emerge right um and like

all animals they employ means which which is the misa human action concept we use scarce resources in the world to

achieve our goals so human action is basically just the use of a scarce

resource that you can use to causally intervene in the affairs of things to change the outcome of what’s going to

happen in the future if you don’t intervene this is just very basic this is praxiology this is mises right so

even crusoe alone on an island with no other people around he uses scarce resources to achieve goals but he also

has knowledge if he didn’t have knowledge he couldn’t act so there’s two basically there’s two fundamental

ingredients to all human action that is access to or availability of scarce

resources means and knowledge about the way the world works so you have to have

some knowledge about what’s coming that makes you uneasy and you want to change that and you have to have some knowledge

about how to change it that’s the knowledge of the causal laws of the world so if you feel rumbles in your

stomach and think you’re going to get hungry that thought displeases you and you want to stay off being starved so

you’re imagining the future and you have some ideas about how to stop yourself from being hungry you know you have to

get food that’s a so this knowledge guides your action and then your action might be to go fashion a fishing net or

a spear and catch a fish and eat it that would be the use of means guided by knowledge so this is just man acting

alone and your body is also another scarce it’s a way you intervene in the world you use your body to act and you

employ other things tools right to act this just the basic framework then when

other people when you’re in society there’s a benefit to being in society you can trade with other people and you can interact with other people you can

learn from other people so you can you can get resources from other people you can get consumer resources or or

intermediate resources you know tools and you can get knowledge so you it’s benefits everyone but with other people

there’s a possibility of of conflict over these scarce resources because they’re scarce only one guy can use this

fishing net at a time and if i have a fishing net and someone takes it i can’t use it to accomplish my means so there’s

a possibility of violent conflict and therefore the concept of ownership or property rights emerges which says that

um it’s a rule specifying who gets to who has the right to use this resource in the case of a dispute and those rules

naturally become the natural law rules that we libertarians favor and that law

favored basically you own your body which they say you own yourself which is a misleading way of putting it um and

you own these resources that you homestead or that you acquire by contract so that’s basically libertarianism and the private law that

developed is basically finders keepers right and contract that’s i mean anthony

deassi has a book choice contract consent it’s very some very simple principles richard epstein has this s

you know six common law rules for the world i mean the basic rules are very simple and they inform a property system

so when you live in society to be able to be secure and able to use these scarce means that means to have

successful action and to live a good life you need to be secure in the ability to use these means and that

means you either have to have the ability to defend it yourself or you have to live in a society where people

by and large respect those rights and that’s what happens in society most people voluntarily respect it because

they get benefit out of the system and it’s enforced by a some kind of legal system combined with your own

self-defense right you put a lock up you have your shotgun and you can go to your neighbors for help and you can go to a

court if you have to and you have deviants every now and then but that’s what a property right system is the

property right system is the emergence of a set of practical rules to solve the

problem of conflict when there’s a world of scarcity so the entire purpose of

property rights is to determine who owns what in a just fair way when there’s a

possibility dispute and as you can see this applies only to the scarce means of action not to the knowledge that guides

your action because these knowledge can spread the world over which is exactly why the human race has progressed

because every century every generation every day the body of human knowledge

scientific knowledge technical knowledge philosophical knowledge builds and grows and everyone can dip into it and learn

from it and that knowledge magnifies the efficiency of our actions you could say

that the amount of scarce stuff on the earth is maybe finite in a sense because there’s only so many atoms but the

amount of ideas is potentially infinite and that’s why we’re getting richer every generation because our technical

knowledge is getting better but property rights only apply to the things where there can be a dispute over it because

the property right always answers the question when there’s a dispute between two or more people over who has the

right to use this one thing that only one of them can use who gets to use it okay now we have a set of answers to

that but that’s just property law itself but that’s what property rights are now

that would be the case in a purely just society a private law society as hapa calls it right or an anarchist

capitalist society a free a totally free market um when a state comes on the

scene of course they intervene in certain ways they have to support themselves with taxation which is taking someone’s property without their

permission which is a type of theft but people tolerate a certain amount of that to get the protections of the king and

etc anyway now what happened was let’s say starting in the middle ages around

that time time of the law merchant kings and monarchs increasingly would they

would on occasion practice a type of favoritism or protectionism even so this

is where patents come from so monarchs would grant someone what they call a letter patent and patent it means open

in latin patente so it was an open letter like the king would write sir

francis drake is the only guy who can be a pirate on the high seas or this or this guy this tea company you know that

they have the monopoly right to do this in this colony so a patent was basically

a monopoly privilege granted by the king and then in exchange the people that got it would be loyal to the king they might

help the king collect taxes this kind of stuff so patents were basically just privilege grants by the crown everyone

knows this this is like not disputed history um at the same time before the

printing press it was hard to produce printed works this would be the domain of copyright um so the church and the

state kind of combined together could easily control what works could be printed right they want thought control

they only want you know the catholic version of the bible to be printed or whatever you uh no pornography um when

the printing press came about it threatened this monopoly right because they now you could have a river of books being printed easily for the masses and

so the government of course got into the game and like in england they they had this thing called the stationers company i can’t remember the years from 50

whenever the printing was 1500s i think so they had like this hundome year charter so during that time if you

wanted a book published you had to go there and they’re only going to allow certain books to be printed with the approval of the church and the crown

right so that’s what copyright came from this basically purely censorship it was

control of thought in the meantime this publishing industry started emerging and they got used to the fact that they were

the ones who had this basically monopoly on publishing books so go back to the

patent thing in 1623 the abuses got so bad that parliament passed what they

call the statute of monopolies you can look it up statute of monopolies see they they were honest in their language back then like we used to have a

department of war in the us now it’s department of defense right they called these things monopolies and they limited

they circumscribed the ability of the crown to grant monopolies like all these privileges he was giving like on who can

sell playing cards in the town or sheep skin or whatever but they made an exception they said but if it’s an

invention like if it’s if it’s a useful new innovation or invention the crown

can still grant them subject to some regulations so patent for inventions escaped this prohibition okay so you’ve

had the statute of monopolies which started the basis of modern patent law and then it was emulated by the united

states in 1789 when we ratified the constitution and it had a patent clause

in there so that’s how it started it started as grant of the government of monopoly protectionist grants which

basically protected people from competition and that’s what they do now copyright in

170910 queen anne when she was under pressure to renew this stationer company’s charter under pressure from

the publishers and from authors published they parliament stat enacted

this statute of an 17 i think it’s 1709 but it was ratified in 1710 but anyway

that’s the origin of modern copyright so that basically on paper granted the right of copyright to the authors but as

a practical matter the authors still had to go to the publishers to get a book published they didn’t have xerox

machines uh you know they didn’t have photocopers so so the publishers just turned around and kept their their

monopoly going and which has lasted until this day and it’s only now being broken down by amazon and the internet

and self-publishing this is why we’ve had a publishing industry all these years because of the legacy of the censorship

system right so um an author would have to sign all their rights away to the publisher or the an employee who works

for hire as someone authored hired to paint or to compose that as a practical

matter they would have to assign their rights to the publishers anyway so it ended up being just like it was under

the stage until just recently i mean remember prince put slave on his cheek for several years because of the

horrible way he was bound by his his label’s record contract and this has

happened so many times but now thanks to the internet we’re finally freeing we’re seeing the crumbling of the legacy

publishing industry we’re seeing the crumbling of the ability to to really strictly enforce copyright law and my

hope is that 3d printing will be the analog of that for patents like eventually people will be able to make

objects without permission you’ll get an encrypted file that’ll have the design for some device and you’ll just make it

even though someone has a patent on it so my hope is that technology will help us to basically evade and and render

basically um moot uh the copyright and patent system and the reason i really am

worked up about these is i think that really copyright is horrible it it basically censors free speech prevents

people from publishing books if they want to prevents documentaries from incorporating photographs and footages

that that some rights holders don’t want included and patents are even worse because they basically impede the

development of of technical innovation technical of invention because someone

is not going to bother to innovate in a field if they won’t be able to sell a product because someone has a monopoly

on it so it slows down the rate of innovation and i think that slows down the progress of the human race and it’s

it it basically kills people because we would have more wealth we’d have more

life-saving drugs we’d have more uh amazing inventions um so i think these

things are very very harmful to the human race they’re not just abstract problems and the other problem is it’s

insidious unlike say the drug war or or or war itself or taxes which most people

especially most libertarians even if they’re a minarchist they can kind of see that taxes are wrong it’s wrong to

put someone in jail for drugs but it’s harder to persuade them about ip because it’s called intellectual property and

it’s and we think of the intellect as good and innovation is good and creativity is good so that’s one reason

it’s an insidious um problem and i mean you can see even now trump and these guys are using it china stealing our ip

as an excuse to limit free trade so it has lots of tentacles in in in lots of

laws hey folks let’s take a break from my interview with stefan canella to talk about you know i’m going to do something

new here i’m not going to try to sell you something how’s that i’m just going to encourage you if you haven’t ever

read it to read my pamphlet chaos theory two essays on what is it private law and

private defense something like that i forget what the subtitle is and uh it’s good stuff so you you can buy it if you

want to but the mises institute also has the pdf version up there and i will also link in the show notes page to my longer

journal article on private law and military defense that was in the journal libertarian papers that stefan is the

founder of so for those links go to

bobmurphyshow.com/39 and you’ll see the links to my writings on private law and private military defense that’s great

stuff steph let me just sort of crystallize i think what some of the main um points you made there just again

because for someone who’s never heard this before i know it takes a while to get over it and so i think you in terms

of just the justice of it and the nature of property rights you’re saying and that has to be concerning physical

tangible things and you know somebody can i own a a pizza if somebody takes a

piece of my pizza away that’s one fewer slice i can eat whereas if i create a

song and then somebody quote steals my song that doesn’t actually limit what i can do with it if they if they really

just copied it you know if if they broke into my house and they you know they took the hard drive that it was on then

you know maybe that but but it’s not that they stole my song it’s they stole my hard drive that’s the issue and so is

that the fundamental difference in terms of why intellectual like it’s it’s it’s not merely that you’re saying like it’s

immoral you’re saying it’s incoherent like it doesn’t make sense to say you can own an idea that doesn’t make any sense yeah so so the word stealing is

actually wrong so people use that they’ll call it theft stealing or even the word piracy but literally th those are not going on it’s called copying or

learning or competition or emulation if you see someone doing something successful in the market and you learn

from them that this is a good thing to do and you start emulating them this is why we have competition so i think the

reason it’s incoherent is that i think i wouldn’t say that owning ideas is wrong i’d say it’s literally impossible so

it’s it’s it basically every intellectual property law is a disguised transfer of ownership to tangible things

so for example if if i have a patent on making an a smartphone with rounded

edges which apple does and i can sue you to prevent you from making a smartphone

with rounded edges the court is in effect granting me a property right in

the other in the competitor’s factory mhm so you have what i would call in the law calls as a negative servitude or a

negative easement sort of like when you have a neighborhood with a restrictive covenant arrangement which everyone has

agreed to where every no one can paint their house orange in effect all your

neighbors have a partial property right in your house in that they have a veto over one way that you can use it but

that’s contractually granted um what the patent system does is it grants this negative right this negative easement or

this negative servitude it grants it to the patent holder even though the person with the property burdened by it never

agreed to it so it’s a taking of property so basically when you say there’s a right to an idea it’s just a

way that the that the law in effect gives someone ownership over other people’s property

um can i yeah let me just mention because that’s a fundamental point so i i write a short story you know and

microsoft word on my laptop and i go and i apply for copyright protection and so

i i take you to be saying stephan rather than viewing it as ah now finally the law recognizes my ownership of this

story really what’s going on is the law is now limiting the ability of everyone

else on planet earth to use their printing presses or blogs or you know

microsoft word license software in a certain way because now they can’t reproduce quote my story so really it’s

not that i have a property right it’s that now everyone else has less of their property rights in their tangible stuff

yes and uh i mean uh tom palmer points that out in his seminal article rodri long in like 1995 in his antiip article

it points out that owning ideas means owning other people and there’s even been some cases about this like you

can’t go on stage and like there’s some lawsuits against yoga practitioners for like certain bickram some trademarked

yoga now this is trademark partly trademark uh or dance moves that are choreographed moves you can’t dance in a

certain way i think there was a beyonce was challenged for one of these uh some people have gotten tattoos on their

faces like some basketball players and those are copyrighted tattoos and so now what do you do do you do you actually

have to force them to have surgery or laser surgery to remove it you have now the law usually backs down from these

they find a way you know cuz hard cases make bad law or whatever you say but

they they shy away from the extreme implications but that those are implications and some cases have

literally ordered books not to be published jd salinger has his catcher in the rye and there was a sequel written

by someone and his estate went to court and the court banned the publication yeah and that’s a good point i know like

when i was younger i was a star trek geek and there was you know this whole like genre of star trek books that were

not you know based on the movies but just you know people taking the characters invented by gene rodenberry

and making new situ and that those are of course all you can’t do that you need to get permission from whoever owns the the copyright to do that and it’s

amazing you know so you can’t you can’t just take captain kirk and spock and put them in some new story because oh no

those characters are owned by whatever paramount whoever owns it well and you hear the same kind of complaints about

like colorization of movies and people say “oh you’re destroying the work.” it’s like i’m not destroying it i mean the black and white one’s still there

mhm you know uh you don’t like it if someone’s doing it but you know i think benjamin tucker had a point he said

something like “if you go into a public street and drop a bunch of money people are going to scramble after it you can’t complain that they’re doing that

likewise if you have an idea that you want to keep to yourself keep it to yourself but if you make information

public you can’t complain if other people use the information that you make public and so if you come up with a new

mousetrap design you can keep it to yourself but if you want to sell this mousetrap you need to sell it and you

probably want to tout its new features to sell it so you’re going to reveal to the world necessarily in most cases

you’re going to reveal to the world how you’re doing this and guess what you’re going to invite competition um and

people are going to over time compete with you the real complaint i think about about not having patents is

basically it’s a fear of what people call unbridled competition so and they explicitly say this so if you think

about it the like the austrian idea and correct me if i’m wrong because i’m probably slightly misstating it but the

idea is that there’s a natural rate of interest or profit u but the profit is something above the rate of natural rate

of interest and tends to go down to that as you attract competition and you attract competition over time when

people notice that you’re doing something that uh is a new way of pleasing consumer wants so if you have a

pizza delivery idea and you start doing that eventually there’s going to be dominoes and uh other companies and your

profit rate will go down so you have to continually keep innovating or keep your reputation up or something to make this

profit and it might be easier to make profit at first but not forever the problem is that in some types of of

sectors of the economy some services and goods um there’s a heavier proportion of

that good that is that is easily replicable like a book for example especially nowadays like the main value

of a book is not the value of the paper it’s it’s it’s the particular arrangement of the ink on it it’s the

pattern and that’s pretty easy to copy so the concern about people that are in

favor of copyright and patentable inventions is that um or like pharmaceutical drugs is that those types

of things it’s much easier for your competitors to compete they can compete quicker and sooner than they could build

up a competing doughut shop or something because those are more capital intensive etc and so basically their fear is that

competition is too easy so they want to they want to make competition harder so they want they want the field any field

of of economic trade that relies kind of heavily on patterns of information that

are easy to replicate they want to slow down competition to make it more like in the tangible world so that it’s harder

to compete so that the innovator has like a resting period where they can make basically monopoly profits for a

while to justify their original expenditures so that’s the utilitarian argument which there’s no evidence for by the way either on the utilitarian and

empirical side of things all the evidence points against let’s stop hang on one second let me just make sure we

drive that point because yeah that that’s the last thing i want you to to hit here is the incentive issue but but yeah just in terms of that you’re you’re

right i mean it’s like and again i i know there are particular musicians who listen to this podcast and i’m i’m

tryinging them as the the target audience here to get them to see so clearly like in music yes you you do

copy things or you or like podcasting for example i saw when i started this show that joe rogan would have somebody

on for three hours and at first i thought that’s insane who’s going to sit there but then i actually listened to some of the guests that i enjoyed and i

realized oh wow you can really get into deep stuff if you have someone on for a long time that you’re not going to get

you know like as opposed like tom woods’s rapid fire interviews where he has people on and so so imagine if joe

rogan could sue me and say “no no that was my idea to have really long interviews you’re not allowed to do that bob murphy.” i mean that would be insane

or einstein comes up with e= mc² imagine if other physicists had to pay him a fee

to use that equation or you know like a mathematical theorem once it gets proved imagine if somebody said you know what i

don’t i don’t want anyone the mathematician using this would would other you know math journals have to pretend they didn’t know that and you

know so it’s it’s insane so the the patent system comes up with arbitrary exceptions in in response to those

things because they know that life would break down if you started doing that so they’ll they make up an exception for

for purely abstract laws of nature and math for no real good reason i mean you

could use e= mc² and apply it to make some nuclearpowered device maybe get a patent on that but not the original

abstract formulation uh einran they try to distinguish between sc discovery and invention and as a patent lawyer i my

personal view is none of these things are objective at all the law is totally objective it’s not even easy to apply

the existing law and the standards in the law are not objective they’re totally arbitrary um and even in in music just to give

like so there clearly in order for music to progress people do have to emulate there’s a story that i thought was funny

so that you remember stuff in the the we are the world song when all those different musician and the a’s came

together and so the story goes that michael jackson went up to daryl hall of hall and oats and apologized to him and

said “hey i’m sorry but you know the baseline you guys have in that song can’t go for that.” you know no can do

that song that i i stole that for my for billy gene and so for folks oh if you play the beginning of those two songs

actually you know at first you might think it’s one song or the other they’re very similar and apparently daryl hall

said “oh don’t worry about it we stole it from somebody else.” so obviously they were joking and they don’t mean literally steal but clearly musicians

all you know oh you know um the beatles were influenced by buddy holly you know their story of paul mccartney talking

about he and john lennon went to go see him it’s like wow how is he playing like that and just studying him and going back to their garage and trying to

reproduce it clearly for music to progress artists have to quote steal from each other all the time and so it’s

a pretty arbitrary line to say where should the law step in and science too i

mean every everything is incremental there there are no inventions or innov innovations in a vacuum everything

builds upon previous knowledge uh even the fact we use language to communicate

with each other no one no one came up with the language but we all use it and benefit from it um i think people also

confuse the idea of accreditation and dishonesty and plagiarism those are all completely different concepts so they

they think certain people should get credit you know michael jackson should be seen as the guy who came up with

billy jean and by and large he is um but that’s got nothing to do with rights and

plagiarism is a completely different thing altogether that’s basically pretending you’re the author of something in a contractual setting like

a school like a university without giving full attribution credit but

there’s almost like this obsessive idea that you should have a we should live hyperfootnoted lives and every single

little thing we ever do we have to have some chain of credit i mean galos who i mentioned was one of the craziest he is

renowned to have changed his name from james andrew galos to andrew joseph gambos because his dad was the other

name and he didn’t want to infringe his dad’s rights in his name and he had this idea that thomas payne invented the

concept of liberty so every time you use the word liberty so he thought his followers should all put a nickel in

some box some escrow account for whenever we finally discover who payne’s

descendants are and we can pay them back for using the word liberty but they’re not even joking it sounds like a joke

but this is the consequence of taking this idea seriously of owning owning

ideas because there is no dividing line and like i said no idea should be ownable because ideas are not ownable

and then you’ll have people who defend the ip system they will they will say “oh you’re you’re being uh dishonest

because the copyright system doesn’t let you protect ideas is it only lets you protect the application of an idea or

blah i but on the other hand half of the ip supporters say it’s important to protect ideas so they will just flip

back and forth as they need to and avoid the fundamental issue which is that you cannot own patterns of information or as

rodrick long called it in his article you can’t own universals like if you own

let’s say you own a red car you own that car but you don’t own its redness if you

did own its redness that means you own everything that’s red so all of a sudden sudden you own every everyone else’s red

car or maybe never their red balloons maybe everything they have or maybe everything that weighs the same amount

so every item that you own piece of property has material attributes or characteristics or properties it has

weight an age a size a shape and then patterning on its surface like a book you don’t own those features you own the

thing and it has certain features uh so this is the mistake people make they

they abstract away the ownership of the resource by the way it’s the same thing with bitcoin i’m i’m a bitcoin

enthusiast and uh and hopeful type right and and interested in it but when people

say you own a bitcoin a bitcoin is just an abstract concept of a of an entry in

a ledger and the ledger is just a collection of data or information which is stored on various people’s hard

drives around the world those hard drives are physical devices owned by individual people they own those hard

drives no one else owns it so if you were to own your bitcoin that means that

if someone steals it you should be able to go to a court and i guess they’re supposed to give it an order to all the

thousands of people around the world who have hard drives storing the blockchain and give them an order to change the to

unwind it or to change it which is what basically greg wright by the way who’s the bitcoin sv guy is arguing for right

now um cuz he he’s arguing that the bitcoin cash the bch people conspired uh

and violated antitrust law he’s got a lawsuit he filed in florida or one of his companies and i guess the theory is

they want this court to order the bitcoin cash blockchain to unwind and go back to where craig wants it to be which

is of course impossible technologically and it’s just ridiculous and it but it demonstrates that this whole idea of

owning having a property right in patterns of information has to undermine property rights and other things just

like when you print money the government prints money it reduces the purchasing power of existing money just like when

the government comes up with positive rights it’s not free they can’t just grant everyone a right to education or

health care we all have to pay for it so nothing comes for free and when you

grant property rights in non in non-scarce things you necessarily

necessarily undermine property rights and scarce things precisely because all property rights are enforced by physical

force and can only be enforced against physical things right i mean if i sue you for copyright infringement i want

your money or i want to stop you from push publishing a book so i’m really just using this as an excuse to take

care of other resources so i i know we only have you for a few minutes left here and i want to get to the questions

so i would encourage those listening because i know you know here i think stefan makes a great case for just a you

know a direct frontal assault on the notion of intellectual property but you have concerns like well gee but why

would anyone write songs again so i especially for those who are upand cominging artists i would say imagine

how much easier it would be for you to break out and become known and get big if the major record labels didn’t have

this incredible power that the government system right now is giving to them that a lot of what you do is you to

get new you you quote give away your music for free and you make your money you know touring and things like that or

or having you know signed albums or other goodies that you give away besides just the actual song itself so i would i

would say that actually i think your business model right now probably does involve a lot of just quote giving the songs away to to get your name brand

recognition up and and that the way you know the reason it’s so hard to break into the music industry is precisely

because these big players have the government has their back and sort of you know beating down people who

challenge their monopoly position or their cartel position and and not only that summary on that issue stem yes and

we have copyright right now and their songs are still being copied because of the internet so copyright is too late it

doesn’t prevent copying anyway yeah it’s sort of like the drug law or drug war that even if you thought it was a good idea clearly it’s not working so it’s

not like we’re getting rid of heroin use by making it illegal okay so steph i know uh let me just let’s go real quick

through these i know you got to get going here soon but we just have uh six questions from the listeners if you just

want to do a rapid fire is that all right with you that’s fine yeah sure we can go we can go a little bit longer if it’s up to you if you yeah it’s fine

with me yeah i just don’t want to tax you too i know your time is scarce so uh so somebody asks what is his favorite

fiction book oh well um probably us constitution oh

one probably the chronicles of thomas covenant by steven r donaldson uh that

first trilogy of his also love the king must die by mary renault uh i don’t

think i have a favorite i actually don’t my mind doesn’t always work that way like having a favorite especially cuz

tastes change over time sure um i yeah till we have faces by cs lewis is also a

great one so okay that’s a good selection somebody asks “what was his

worst story working as a lawyer?” i think maybe he means the best story involving something that was distasteful

when you were working as a lawyer i mostly do patent prosecution which means obtaining patents for people and i sort

of assuage my discomfort over that by imagining myself to be like making guns

or bullets like so i’m selling it to people some can use them for good some for evil because a patent can be used

justly defensively so i don’t have a if it’s distasteful i wish my job didn’t exist i wish that people didn’t have to

waste money on people like me um in terms of litigation i’ve been lucky that i’ve only been involved on the defense

side of patent suits if i had to be part of the offensive assertion of a patent i

i probably wouldn’t i wouldn’t do it now and i don’t know what i would i would just turn down the the client so can you

explain what do you mean defend defensive you practice defensive patent line what does that mean so if i own a

patent i can go after my competitors and just sue them or i can if i’m a patent troll i can have a patent and just go

after people practicing something similar to what the patent covers and ask them for money otherwise i’m going

to sue them so um that would be an offensive use i would say an aggressive use is it’s an act you’re trying to use

the courts to steal people’s property but if someone sues me for patent infringement i might counters sue them

for violating one of my patents and i think that’s totally justified this is one reason why people accumulate patent

war chests is so they can use them defensively if they get attacked so you have all these people it’s sort of like the nuclear situation between us and

russia they keep accumulating these weapons for tons of money just to keep

each other from using them right it’s like that just as a deterrent effect it’s a deterrent and it’s also it helps

them establish cartels so you have apple and samsung and google all these big companies ibm and you know ge they

accumulate patents in vast areas and if they sue each other they can usually

settle eventually and cross cross license and then go back to business and pass these wasted costs on to the

consumer um but little companies can’t even compete because if they start competing and making like some small

startup starts making a smartphone similar to an iphone they’re going to get sued out of existence and they won’t have any patents to sue apple back with

so it helps establish walled gardens or cartels or oligopolies uh so which is

not surprising because a patent is a monopoly grant by the government right and and then you have the

government has antitrust law and so the courts say well there’s a tension between like you think there’s a tension

between the government’s antitrust law and the government’s patent law so they say well if you abuse your patent monopoly then that’s an antitrust

violation in other words if you use it so the the government’s uh schizophrenic

i i i like to say so i don’t have any horror stories i actually enjoyed the practice of law i i worked in philly for

a while and i enjoyed pract practicing in a in a philly law firm even though being from louisiana um i was kind of

more intellectual than a lot of these guys and knew more about patents and double e stuff and so it was fun sort of

being a a lowass lawyer in philly but i don’t have any horror stories i i’ve enjoyed i’ve enjoyed law i had no i

never had any traumatic experiences well probably if i asked the guys in that firm they say “oh yeah there was this one guy from louisiana let me tell you

stories about that clown.” oh well i i can’t there was i did make

one big mistake when i was younger but i i can’t repeat the details but i i typed something in a joke email to my

secretary and she made a mistake of telling a female partner at the firm cuz she thought it was funny and uh that

almost got me in trouble but uh i’ve learned to uh uh learn what jokes were inappropriate now did you say “hey that

was my email or my note you shouldn’t have given that to somebody else.” that was yeah i’ll i’ll tell you offline okay

uh let’s see somebody wants to know is there any substant area where canella

disagrees with hapa maybe on the naming of your article

there are a couple of quibbles i have in some things um i think in his argumentation ethics um he glided a

little bit too um casually back and forth between uh the way he described uh property

rights and like he’ll he used it descriptively sometimes and he used it normatively sometimes um but and i

mentioned that in my long review i did 1994 but i i thought that could be repaired just by carefully right working

it out um maybe some little economic issues where like he and gito have disagreed like on this uh division

between um your uh your income between uh savings and investment and

consumption and kind of the the praxiological the way to look at that i think that’s in the footnote of go and

hans’s two articles in that big big uh fractional reserve banking debate uh i

don’t think i agree with hans or any of the rothbardians strictly speaking with this

idea of fractional reserve banking being inherent fraud and this kind of double

title problem i think they’re i think that’s slightly wrong um i think in practice it’s been fraudulent and i

think it’s economically incoherent so i agree with them ultimately but i think that this idea that it’s inherently

fraud and that even if the bank put a big warning notice on these ius they’re

issuing that this is just an iou and it’s not backed um that it should still be outlawed like dotto is really um

strong on this he thinks that should be outlawed um i i think that gave ammunition to the to the free bankers

like a white and seljian because they could pick on them for that mistake when if they’d stick

stuck stuck to the economic incoherencies of fraction or banking

that would have been better but that’s just a little issue um i’m i’m probably not quite as uh i’m not i’m not really

as interested in the culture war stuff like hans is um that he got into later

in his democracy and subsequent stuff but i find it interesting and and persuasive he does have an article uh

where he posits an alternative explanation for the malthusian trap how we got out of it um and i tend to agree

with his criticism of existing theories like they’re not adequate like explaining the industrial revolution

basically um and his theory sounds somewhat plausible but i don’t think he proves it it’s basically that we we

evolved to a certain amount of intelligence uh like in europe at a certain point in time around 1800 where the average

intelligence was high enough that the average person was smart enough to emulate the ideas of the in of the

geniuses who had always been there and then then the ideas could spread um that is a that is an intriguing theory but i

don’t i don’t i’m not persuaded of it i have i have a different theory but um i don’t know but that’s about it that i

can think of off hand we got two more here so one person wants to know so he

here he’s alluding to something i wasn’t aware of i guess you had a discussion with nick sarwark about the lp and and

and this guy just wants to know like do you have any further thoughts about how the lp should proceed going forward or

if that’s not your bag or your your cup of tea or how what’s your take on that

well my like i mentioned my first encounter with lp was um ron paul when he visited lsu and uh i think my very

first vote was 80 84 reagan’s second election i voted for reagan even though

i was a registered democrat because my parents told me to be so my very first vote was a republican but after that i i

always voted libertarian even though i was never a member of the party and even though i don’t vote usually but i’ve

never been hostile to the lp i just think politics is kind of futile but when tom woods i don’t know if you were

part of that but about a year or two ago when the lp mises caucus got going and wood and i think woods and some other

guys got critic they they criticized the lp and then they got criticized they said “you’re not even a member how can you criticize us?” they said “all right

then we’re going to join.” so i think woods and three or four five other prominent libertarians all joined and i

thought to myself you know over the years everyone always asks me they always all the normal people in my life

they always confuse libertarian small l with libertarian big l they all assume i’m a

member of the lp and i’m always trying to explain to them the difference and they don’t understand they don’t care and i thought to myself you know what

i’m not really into political activism i don’t think it’s going to work i’m more into theory and um trying to live a good

life and do it that way and or whatever you know um but they are my peeps basically so these guys are all my

people why am i denying it so hell yeah i’ll just so i joined the lp just to join and i my one thought was if i could

make one difference it would be to get them to adopt an anti-ip plank in their platform i mean there’s no reason it

shouldn’t be in there i know it probably won’t be because there’s such a randian influence and there such a utilitarian

uh uh segment of of libertarians but uh i thought maybe i can do that and um

there’s actually this girl carol anne karen anne harlos who is on the committee or something and she asked me

for a draft i don’t know maybe 9 months ago and i had written one actually a draft of how the lp platform should be

amended to oppose patenting copyright and i gave it to her and i think they’re trying to get it on some state platform

first so if i could make that one change i would be i’d be somewhat mullified but i have nothing against the lp i i

personally think that whoever they nominate for president should be a libertarian um i would not i would not

have voted for william weld i would i don’t think he’s libertarian uh i would i wouldn’t mind voting for a minarchist

or someone who i don’t agree with on everything but at least if they call themselves libertarian and they they’re basically a core libertarian so i’ll

probably vote libertarian again if i vote in two years um but i have nothing

but good wishes for the lp and i understand why they why their squables about purism versus pragmatism and all

that kind of stuff okay and then the last one is somebody wanted to know uh what are your religious views if if you

have any if you want to talk about that at all you want to answer for

me well i was reared catholic i was a strong catholic until maybe 14 or 15 and

then i basically started questioning things and became an atheist so i’m an atheist and i was kind of militant for a

while um i i don’t think i’m militant anymore um i’m very i understand i put

it this way i would prefer real religious people than secular democrat

atheist liberals who worship the state so they’re they’re religious too they just think they’re better than that and

they they worship a horrible monstrous god which is the state um so i’m i’m an atheist but i try not

to make it the core of my life and i’m i’m not i i don’t think i’m militant about it and i when i get weird

questions like “do you respect other people’s belief?” i don’t know what that means to respect someone’s beliefs i mean right i i i i guess you have

someone’s ill-willed or or honest or intelligent or correct but i i think

people have the right to believe whatever they want and i understand that some people are religious and i don’t think i’m hostile to it um so that’s my

basic stance okay fair enough i will be praying for you stefan

i’m not offended by that okay well thanks so much for your time at some point i want to have you back cuz as you

alluded to you and i do disagree about argumentation ethics but i think that would you know we wouldn’t be able to do

it justice in this in this setting so we’ll have you back again we could probably talk a good 30 40 minutes on

that so maybe we should do a separate episode because it would probably be interesting to we’ve never really talked that much in detail about it apart from

our writings right and and that that is definitely something i want to have you back on and we can talk about that so i

understand stephan that you have some books that are coming out in the near future do you want to tell the listeners about them sure uh real quickly i i do

plan to write a new ip book someday from

the ground up based upon the the kind of different ways i’ve learned since writing that i the other one um about

presenting the argument and some nuances i’ve learned since then and i’m going to call that copy of this book um so maybe

two three years that’ll come out but that’s a long-term project i might also do an anti-ip libertarian reader with a

david kepsil and maybe gary chardier but this year i have coming out next month i have a book coming well chris gabara in

new york and roger bissell uh and one other editor um have a book coming out called dialectics of liberty it’s being

published by lexington i think it comes out in june and i have a chapter in there on on um sort of the argumentation

ethics and my own approach to u to rights theory libertarian rights theory and in september i have a book coming

out called uh international i keep forgetting the title of my own book let me see here international investment

political risk and dispute resolution a practitioner’s guide and that’s by oxford and that’s uh going to be like a

800page lawyers legal scholars reference serious thinker huh

well in a way this is my most practical and mundane book but it in a way it’s my most systematic um and scholarly work

but it’s i have two co-authors my one co-author is an um an american lawyer

who lives in france who’s one of the world’s leading international arbitrators noah ruben and we have a new

co-author this time uh from from cyprus a criate law professor so we cover the

whole spectrum of international investment law and it’s fascinating uh and the only libertarian angle is that

from my point of view the goal of it is to look as a lawyer for the benefit of clients at ways to protect their

property rights when they invest in other countries because there can be takings and expropriations and things

like that and then finally i’ve been working for many years on just coming up with the energy to put together uh an

edited collection of my more um libertarian theory articles and that should come out either later this year

or early next year and that’s going to be called law in a libertarian world okay that sounds great and i guess the

barking dogs means it’s time for us to wrap up here so yeah that’s by the way that’s my poodle uh louis visa’s canella

barking well great so we i will have you back on at some point steph because we need to talk about argumentation ethics but

obviously we don’t have time to do it now that’s something where we you and i do disagree strongly and it’ll be good good for the listeners to hear that so

i’ll have you back at some point to talk about that in the meantime thanks so much for your time stefan uh thanks for being a part of the bob murphy show

thanks you’ve just experienced another episode of the bob murphy show the podcast

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