KOL498 | Adolf Reinach and his “On the Concept of Causality in the Criminal Law”

by Stephan Kinsella on September 20, 2026

Kinsella on Liberty Podcast: Episode 498

This is my speech delivered this morning at the 2026 Twentieth Annual Meeting of the Property and Freedom Society: Adolf Reinach and his “On the Concept of Causality in the Criminal Law.” It is based in part on Kinsella, “Causation and Aggression,” Hoppe, “Property, Causality, and Liability,” and Reinach, “On The Concept of Causality in the Criminal Law.”

This recording is from my own iPhone. Professional video and audio will follow in due course.

Reinach, “On The Concept of Causality in the Criminal Law”
Kinsella, “Causation and Aggression,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)
- Based on Stephan Kinsella and Patrick Tinsley, “Causation and Aggression,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 97–112
- Kinsella, Causation, Aggression, the Law, and Reinach
Hans-Hermann Hoppe, “Property, Causality, and Liability,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 87–95, reprinted in Hoppe, The Great Fiction: Property, Economy, Society, and the Politics of Decline, Second Expanded Edition (Auburn, Ala.: Mises Institute, 2021)
Jörg Guido Hülsmann, “The A Priori Foundations of Property Economics,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 41–68
Larry J. Sechrest, “Praxeology, Economics, and Law: Issues and Implications,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 19–40
Walter Block, “Austrian Law and Economics: The Contributions of Adolf Reinach and Murray Rothbard,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 69–85
Leo Zailbert, “Toward Meta-Politics,” Q. J. Austrian Econ. 7, no. 4 (Winter 2004): 113–28
Barry Smith, “An Essay on Material Necessity,” in Philip Hanson & Bruce Hunter, eds., Return of the A Priori (Canadian J. Philosophy, Supplementary Volume 18, 1993): 301–322
Barry Smith and Wojciech Żełaniec, “Laws of Essence or Constitutive Rules? Reinach vs. Searle on the Ontology of Social Entities,” in Francesca De Vecchi, ed., Eidetica del Diritto e Ontologia Sociale. Il Realismo di Adolf Reinach (Milan: Mimesis, 2012): 83–108
Alessandro Fusillo (Italy): Adolf Reinach and his “A Priori Foundations of the Civil Law”
- Adolf Reinach’s “The Apriori Foundations of the Civil Law”.

My Speech Notes

Adolf Reinach and his “On the Concept of Causality in the Criminal Law”

Stephan Kinsella

Property and Freedom Society
2026 Annual Meeting
Bodrum, Turkey
Sept. 17–22, 2026

1905 a special year: Einstein’s “Miracle Year”:
- Photoelectric effect—light comes in packets, launched quantum
- Brownian motion—proved atoms
- Special relativity—space and time bend with speed.
- And E equals mc squared—mass-energy equivalence.
Today let’s talk about a German from the last century with a mustache.
- Named Adolf.
- No, not the famous one.
Adolf Reinach was born in 1883, died at 33 in 1917 fighting on the German side in WWI.
A brilliant thinker, a phenomenologist and legal theorist, and was the closest pre-war collaborator of the famous phenomenologist Edmund Husserl
He published a number of important works from about 1905 to 1914, when he joined the German army in WWI and was killed in action three years later, in 1917
Today we have two talks on two of his most important works, at least for Austro-libertarians.
- Alessandro has spoken already about his 1913 monograph on the a priori foundations of civil law, published when he was about 30 years old.
  - See also my 2017 PFS talk: KOL225 | Reflections on the Theory of Contract (PFS 2017)
- and my topic is inspired by his 1905 dissertation “On the Concept of Causality in the Criminal Law”
  - Also Einstein’s Miracle Year
- this paper was a major inspiration for my article “Causation and Aggression” and for Hans Hoppe’s article “Property, Causality, and Liability,” both published in 2004 in the QJAE and each based on our contributions to the 2001
- I can only begin to give an overview of Reinach and some of the insights I and Hoppe have extracted from his dissertation
  - For more details, see our 2004 papers; + Alessandro’s
- His 9-10 year publishing career, all in his 20s, also included interesting and important papers on
  - William James and pragmatism;
  - Kant and Hume on causality and necessity;
  - judgment and the ontology of states of affairs;
  - the phenomenology of deliberation and its ethical and legal significance;
  - a critique of Natorp’s psychology; and
  - a 1914 lecture on phenomenology that distinguishes his realist approach from Husserl’s later transcendental idealism
- It is quite incredible that Husserl is still relevant today, a century later; as Einstein is
- As Barry Smith, a libertarian thinker and prominent ontologist who has helped to promote interest in Reinach’s work, told me recently, interest in Reinach has been growing in recent years
  - For example: “There has just been established a working group on the ontology of law, where Reinach is accepted as one fundamental influence.”
  - “If you follow Adolf Reinach on google scholar, some 920 papers are identified since 2022. …”
    - Grok thinks this is a bit imprecise, but… good enough for government work, as we say
  - Part of this is also the continued interest in Searle’s work and increasing awareness of the ways in which Searle’s and Reinach’s ideas overlap.
    - Reinach: theory of social acts; Searle: speech acts. (Grok)
  - Reinach is of interest to me, and other Misesian Austrians, because of his work on legal theory, causation, and applications of Kant’s apriori methodology to social theory
    - It is well known that one significant group of libertarians— Ayn Rand and Objectivists—despised Kant because of his so-called “idealism”
    - Now as Hoppe has conceded, Kant was a somewhat murky thinker and Rand was perhaps relying on second-hand accounts and interpretations of Kant by the more “idealist” American Kantians
      - Hoppe, My Discovery of Human Action and of Mises as a Philosopher
      - Bruce Goldberg “Ayn Rand’s ‘For the New Intellectual’” (1961)
      - Kinsella, “The Undeniable Morality of Capitalism”
    - But there is a more “realist” school of Kant on the continent
    - g., the philosopher Peter Janich
      - Hoppe, My Discovery of Human Action and of Mises as a Philosopher
      - Kinsella, A Visit with Hoppe: Touch, Janich, AI, Being Interviewed, Bankruptcy, Money and Demonstrated Preference; KOL461 | Haman Nature Hn 119: Atheism, Objectivism & Artificial Intelligence
    - Mises employed Kantian terminology in his use of apriori concepts
      - Mises drew on aspects of Kant’s framework that are compatible with realism
      - As Hoppe has shown in his Economic Science and the Austrian Method, Misesian “Kantian” praxeology is realistic
        
        Not to be confused with Hoppe’s other interesting distinction between right- and left-libertarianism,
        
        that the right is essentially realistic in recognizing differences, natural authority, hierarchies, elites, whereas the left is unrealistic and egalitarian—
        
        and so libertarianism is a realistic “right” libertarianism
        
        Hoppe, A Realistic Libertarianism
        
        Interestingly, just as some Kantians (Mises, Hoppe) are realistic, and others more idealistic, after 1913 or so, Husserl turned toward transcendental idealism, and the phenomenology movement split into realists (Reinach, and others), who argued for a world that does not depend on consciousness (Ayn Rand would approve), and transcendental idealists (Heidegger, Sartre, and Derrida, and others)
        
        The leading realist phenomenologist, Reinach applied that method to social acts, law, judgment, and motion.
        
        Studies on motion: calls to mind Peter Janich’s aprioristic “protophysics,” e.g. Protophysics of Time; Euclid’s Heritage: Is Space Three-Dimensional?
        
        Before the somewhat recent resurgence of interest in Reinach’s ideas, there had been awareness of and interest in Reinach by various Austrians, including Barry Smith, who has a deep interest in libertarianism, Austrian economics, and ontology
        
        And so it came to be that Guido Hülsmann organized a Mises Institute international symposium on “Reinach and Rothbard” in 2001.
        
        In addition to Guido, the Director, the symposium included presentations by Walter Block, Hans-Hermann Hoppe, Larry J. Sechrest, Barry Smith, and myself
        
        Some of these and related articles were published along with others in a symposium issue of the Quarterly Journal of Austrian Economics, in 2004
        
        Two of these, by Hans and myself, focused mainly on Reinach’s 1905 dissertation “On the Concept of Causality in the Criminal Law,” the main focus of my talk today
        
        INCIDENTALLY: I ended up publishing a previously-unpublished translation of this dissertation, by Danish-American philosopher Berit Brogaard, with the assistance of Barry Smith (who was her PhD advisor), in the first volume of my journal Libertarian Papers, in 2009
        
        Coincidentally, Reinach’s 1913 paper “The Apriori Foundations of the Civil Law,” already discussed by Alessandro, is not very accessible
        
        It had been translated by the American philosopher John F. Crosby, and published in Aletheia in 1983. It was recently republished in Adolf Reinach, The Apriori Foundations of the Civil Law: Along with the Lecture “Concerning Phenomenology,” John F. Crosby, with a foreword by Alasdair MacIntyre (Ontos Verlag, 2012; now De Gruyter), but a good version is not readily available online
        
        Just last week, Barry Smith put me in touch with the translator, John Crosby, and supported my request for permission to reprint this important paper online in our Property and Freedom Journal.
        
        He said possibly yes, so we may be publishing another of Reinach’s most important works

- The reason Hans and I both found much of value in Reinach’s paper is its wealth of rich insights and useful examples exploring various cases of causation
- As Hoppe points out in his paper, the criminal law, and really all law in general (since all law is enforceable), deals with responsibility for actions

Detour

- - There is some confusion on this issue among libertarians, some of whom sometimes assume we are responsible for our property
    - For example: in discussions of strict liability, where it is assumed people are responsible “for their property”
      - But property is a right not a responsibility
      - We are responsible for our actions, not “for our property”
      - Example: If I own a gun and it stolen and used to murder someone, I am not responsible for the murder, even though I owned the gun, because I did not engage in the action of murder. I did not employ my gun as a means to cause a bullet to enter another’s body.
      - Conversely, the murderer who used my stolen gun is liable for murder even though he did not own the gun.
    - Or: when I point out that one problem with intellectual property is that IP rights are really (nonconsensual) negative servitudes that prevent others from using their own property, the response is often: but all property rights limit other property rights
    - But property rights do not limit others’ property rights
      - Property rights specify who is the owner of a resource
      - That is, who can exclude others from using it
        
        e., the owner is the person whose permission you need in order to use the owned thing
      - A property right limits others’ actions: others’ use of (interference with, invasion of) a given resource
      - Thus, as Hans Hoppe writes, “People can be held liable only for their actions, whether intentional or negligent…”

Now Austrians understand the importance of praxeology, the science of human action, in economics
- Praxeology studies the implications and aspects of action: of employing scarce means or resources in the pursuit of future ends
  - That there is uneasiness, time preference, profit and loss, demonstrated preference, marginal utility, opportunity cost, consumption and production/leisure and labor
- Economics is a descriptive or value-free inquiry
  - It is both teleological (action is purposive) and causal (actor employs causally efficacious means)
- But praxeology is also crucial for normative and libertarian analysis: determining what actions are violations of rights
  - For determining what laws are just
- What is of interest to Austro-libertarians in Reinach here is his approach to criminal responsibility
- Reinach emphasizes that causation and fault are independent elements of liability:
  - “To cause an event means to activate a condition of success; to intentionally cause an event means to activate a condition that brings about the success. … To intentionally cause something thus means to activate a condition of success, willing that this condition … leads to the success.”
- He emphasizes that there can be punishment or liability for a crime, if it is a “condition” of an unlawful outcome, AND which outcome is intended by the actor
- This is similar to the concept of causation in the conventional criminal law
  - But-for causation (factual causation, cause in fact, sine qua non) versus “proximate” cause (“efficient”; legal cause)
  - To be responsible one has to be a but-for cause—but this is not enough
    - You also need “proximate” cause
    - Hitler’s mom is a but-for cause of WWII but not a proximate cause
  - Reinach’s use of “cause” and “condition” is similar to the proximate cause and “cause-in-fact” distinction.
  - And his analysis is strikingly compatible with the Austro-libertarian understanding of action and responsibility for acting
  - The libertarian praxeological view: one is responsible for intentional action that actually causes an invasion or aggression (prohibited or unlawful end).
    - In libertarian analysis, when we ask if someone was the cause of a certain act of aggression, we are asking whether the actor chose and employed means to attain the prohibited result.
    - In other words, an actor is liable for action that causes a nonconsensual use of or invasion of another’s property
    - But action is the intentional, purposive employment of causally efficacious means to achieve an unlawful end (invasion)
      - “Causally efficacious” is not a throwaway line
      - It is understood or implied, but it is crucially important
      - The reason something is a means of action is because it does change the future outcome that otherwise would occur, in accordance with whatever laws of causality (cause and effect) actually underly reality
      - Seeding the clouds might be an efficacious way of causing rain
      - Doing a raindance is not
      - Likewise praying for or hoping for someone to due is not employing a means that is causally efficacious
      - Reinach gives several clever examples to illustrate this
        
        “In one colorful example, Asends B into a forest in the hope that he will be struck by lightning.
        
        Compare this to case where Ais able to calculate precisely where and when a tree will be struck by lightning, and, with malicious intent, sends B to be at the fateful place where lightning strikes.
        
        In both cases, Reinach argues, Ais the “cause” (our “cause-in-fact”) of B’s death, since B’s death would not have occurred but for A’s having sent him into the forest.
        
        However, Reinach concludes that Amay be punished only in the second case and not in the first.
        
        The difference hinges upon A’s intent. In the first case, Ahoped for B to die, but it was simply wishful thinking: he had no control over the lightning, and no knowledge of any objective likelihood that it would strike where it did.”
        
        Similarly: someone intending or hoping to cause rain by doing a rain dance is not actually the cause if it happens to rain afterwards.
      - By the way: this analysis of action also helps explain why some crimes are punished more harshly than others
        
        It permits us to distinguish the particular purpose of the action from its intentionality
        
        For example, an actor breaking into someone’s cabin to rob them, or to save their baby during a snowstorm, are both committing trespass
        
        Both are intentional actions: the actor employed means that cause the breaking and entering
        
        Both are liable for this intentional crime
        
        But the purposes, the particular ends, the motivations, are different
        
        The intentionality of the action is what is relevant for determining whether the actor committed aggression
        
        The purpose or motivation can be taken into account for punishment
        
        Thus, first-degree (premeditated) murder is punished more severely than manslaughter, which is punished more severely than negligent homicide
        
        They are all intentional but the motivations and purposes differ
        
        Another example I give in my paper is when Israeli government assassinated Hamas founder Sheik Ahmed Yassin in 2004.
        
        Now there are many people, in the United States and Israel, who wanted to see Yassin killed.
        
        But only a very small number of these people intended to kill Yassin themselves or to assist his killers in any way.
        
        The lesson of Reinach’s lightning example is that the people who simply hoped that Yassin would die, or who rejoiced when he was killed, are not responsible for his killing.
        
        They gave his killers silent support and sympathy, but they did not intentionally act with the purpose of killing him.
        
        The team of assassins themselves, and the Israeli government that sponsored them, are responsible for the killing, but not the citizens who merely approve of the assassination.
        
        Alessandro: “Reinach’s death was an incalculable loss for the twentieth century philosophy and one can only speculate about the contributions he could have made if war’s senseless violence hadn’t cut his life at only 33 years age.”

EXTRA

Hoppe: “In light of Reinach’s definitions, we return to Rothbard’s causality criterion. While his criterion is on the one hand too wide in including accidental invasions among punishable offenses, on the other hand it appears too narrow in determining liability.”

And this is what I argue in my chapter: that Rothbard results to too-mechanical doctrines. He does this with contracts by seeming to rule out the use of the word “promise” as effectuating a contractual title transfer. Now he is correct that the essence of contracts is not promising: contracts should not be seen as binding promises or obligations, but as simply consensual transfers of owned resources to someone recipient. But determining whether consent was given is a question of whether it was indicated or communicated; and communication is a matter of language. Interpreting language and communication is always contextual; there is always imprecision and the need for both redundancy and background presumptions. Communication may involve a spoken or written language (that is, it may be verbal); if verbal, it may be written or oral. But even when the agreement to transfer is based on written or orally communicated words, even these words are necessarily construed by presumptions and context.

Context matters. If it is customary to knock on a neighbor’s door to ask a favor, it is presumed that the owner consents to the knocking; if he wants to communicate a different message about his intent and permission, he has to post a no trespassing sign. If you enter a restaurant and order a meal, the customs of paying a reasonable price for a meal can prove implied consent. The consent need not be verbal at all; mere gestures and context can suffice, as with two people from different tribes and speaking different languages engaging in trade, sex, and so on.

Consent to sex or a contractual exchange can be determined from context alone. For this reason we can easily imagine cases where the use of the word “I promise to give you X” is meant by the owner to indicate intent or consent to transfer. After all, if you can contractually transfer ownership without words at all, there is no reason why the use of the (somewhat incorrect) word promise means the transfer was not intended. [“The Title-Transfer Theory of Contract]

Reinach also has interesting thoughts on contract theory, but ultimately I think they are flawed as viewing contracts as resulting in binding legal obligations. A better way to approach contracts is the title-transfer theory of Rothbard and Evers, developed in the 1970s and 80s. See, e.g., Crescente Molina, “The Conceptual Foundations of Contract Formation,” in Reinach and the Foundations of Private Law, Marietta Auer, Paul B. Miller, Henry E. Smith and James Toomey (Cambridge, 2025).